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DURHAM,  N.  C. 


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https://archive.org/details/addressonlifecha01gray 


AN 


ADDRESS 

ON  THE 


LIFE  CHARACTER  AND  INFLUENCE 


OF 


CHIEF  JUSTICE  MARSHALL 


DELIVERED  AT  RICHMOND  ON  THE  FOURTH  DAY  OF  FEBRUARY  1901 
AT  THE  REQUEST  OF  THE  STATE  BAR  ASSOCIATION  OF 
VIRGINIA  AND  THE  BAR  ASSOCIATION  OF 
THE  CITY  OF  RICHMOND 


BY 


HORACE  GRAY 


WASHINGTON 
PEARSON  PRINTING  OFFICE 
1901 


/ 


/ 


-*7 

/j 


ADDRESS. 

Gentlemen  of  the  Bar  of  the  Commonwealth 

of  Virginia,  and  of  the  City  of  Richmond  : 

One  hundred  years  ago  to-day,  the  Supreme  Court  of 
the  United  States,  after  sitting  for  a few  years  in  Phila- 
delphia, met  for  the  first  time  in  Washington,  the  per- 
manent capital  of  the  Nation;  and  John  Marshall,  a citi- 
zen of  Virginia,  having  his  home  in  Richmond,  and  a 
member  of  this  bar,  took  his  seat  as  Chief  Justice  of  the 
United  States. 

In  inviting  a citizen  of  another  ancient  Commonwealth 
to  take  part  in  your  commemoration  of  that  epoch  in  our 
national  history,  by  addressing  you  on  the  Life,  Character 
and  Influence  of  Chief  Justice  Marshall,  you  have  been 
pleased  to  mention  that  it  was  President  John  Adams,  of 
Massachusetts,  wTho  gave  Chief  Justice  Marshall  to  the 
Nation,  and  that  I am  a citizen  of  Massachusetts  and  a 
member  of  the  court  over  which  Chief  Justice  Marshall 
presided;  and  to  refer  to  the  most  cordial  relations 
formerly  existing  between  your  State  and  my  own,  nowT 
happily  restored,  and,  as  wTe  all  trust,  being  reestablished 
in  a closer  degree. 

Heartily  reciprocating  your  kindly  sentiments,  and 
deeply  touched  in  my  inmost  feelings  and  convictions, 
your  invitation  has  had  the  force  of  a summons  that 
could  not  be  gainsaid. 

Permit  me,  in  this  connection,  to  recall  one  or  two 
allusions  by  Marshall  himself  to  the  sympathy  which 
existed  between  Virginia  and  Massachusetts  in  the  trying 
times  of  the  Revolutionary  War  and  of  the  Continental 
Congress. 


P33595 


9 


In  the  earliest  known  speech  of  his,  (as  described  by  a 
kinsman' who  heard  it,)  made  in  May,  1775,  when  he  was 
under  twenty  years  old,  upon  assuming  command  as 
lieutenant  of  a company  of  the  Virginia  militia,  he 
told  his  men  “that  he  had  come  to  meet  them  as  fellow- 
soldiers,  who  were  likely  to  be  called  on  to  defend  their 
country,  and  their  own  rights  and  liberties  invaded  by  the 
British  ; that  there  had  been  a battle  at  Lexington  in 
Massachusetts,  between  the  British  and  Americans,  in 
which  the  Americans  were  victorious,  but  that  more 
fighting  was  expected  ; that  soldiers  were  called  for,  and 
that  it  was  time  to  brighten  their  fire-arms,  and  learn  to 
use  them  in  the  field.” 

Many  years  afterwards,  in  a letter  to  a friend,  (quoted 
by  Mr.  Justice  Story,  to  whom  it  was  perhaps  addressed,) 
he  wrote:  “When  I recollect  the  wild  and  enthusiastic 
notions  with  which  my  political  opinions  of  that  day 
were  tinctured,  I am  disposed  to  ascribe  my  devotion  to 
the  Union,  and  to  a government  competent  to  its  preser- 
vation, at  least  as  much  to  casual  circumstances,  as  to 
judgment.  I had  grown  up  at  a time  when  the  love  of 
the  Union,  and  the  resistance  to  the  claims  of  Great 
Britain,  were  the  inseparable  inmates  of  the  same  bosom ; 
when  patriotism  and  a strong  fellow-feeling  with  our 
suffering  fellow-citizens  of  Boston  were  identical;  when 
the  maxim,  ‘United  we  stand;  divided  we  fall,’  was  the 
maxim  of  every  orthodox  American.  And  I had  im- 
bibed these  sentiments  so  thoroughly,  that  they  constituted 
a part  of  my  being.  I carried  them  with  me  into  the 
army,  where  I found  myself  associated  with  brave  men 
from  different  States,  who  were  risking  life  and  every- 
thing valuable  in  a common  cause,  believed  by  all  to  be 
most  precious;  and  where  I was  confirmed  in  the  habit  of 
considering  America  as  my  country,  and  Congress  as  my 
government.” 

Before  the.  adoption  of  the  Constitution,  one  of  the 
chief  defects  in  the  government  of  the  United  States 


3 


was  the  want  of  a national  judiciary,  of  which  there  was 
no  trace  other  than  in  the  tribunals  constituted  lyy  the 
Continental  Congress,  under  powers  specifically  conferred 
by  the  Articles  of  Confederation,  for  the  decision  of  prize 
causes,  or  of  controversies  between  two  or  more  States. 

Among  the  objects  of  the  Constitution,  as  declared  in 
the  preamble,  the  foremost,  next  after  the  paramount  aim 
“to  form  a more  perfect  Union,”  is  to  “establish  justice.” 
It  ordains  that  the  judicial  power  of  the  United  States 
shall  be  vested  in  “ one  Supreme  Court,”  and  in  such 
inferior  courts  as  Congress  may  from  time  to  time  estab- 
lish; that  the  judicial  power  shall  extend  to  “all  cases, 
in  law  and  equity,  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority,”  and  to  other  classes 
of  cases  specified  ; that  the  Supreme  Court,  in  cases  affect- 
ing ambassadors,  public  ministers  and  consuls,  or  to  which 
a State  shall  be  party,  shall  have  original  jurisdiction ; 
and,  in  all  the  other  cases  before  mentioned,  shall  have 
appellate  jurisdiction,  with  such  exceptions  and  under 
such  regulations  as  Congress  shall  make;  and  that  “this 
Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  wdiich  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding.” 

On  the  24th  of  September,  1789,  the  first  Congress 
under  the  Constitution  passed  the  Judiciary  Act,  which 
had  been  framed  by  Oliver  Ellsworth,  then  a Senator  from 
Connecticut.  That  act  has  always  been  regarded  as  a con- 
temporaneous construction  of  the  Constitution;  and,  with 
some  modifications,  remains  to  this  day  the  foundation  of 
the  jurisdiction  and  practice  of  the  courts  of  the  United 
States.  (Jt  provided  that  the  Supreme  Court  should  consist 
of  a Chief  Justice,  and  of  five  Associate  Justices  who  should 


P 8 3 5 9 5 


4 


have  precedence  according  to  the  date  of  their  commis- 
sions; established  the  Circuit  and  District  Courts ; defined 
the  jurisdiction,  original  and  appellate,  of  all  the  Federal 
courts;  and  empowered  the  Supreme  Court  to  reexamine 
and  reverse  or  affirm,  on  writ  of  error,  any  final  judgment 
or  decree,  rendered  by  the  highest  court  of  a State  in 
which  a decision  in  the  case  could  be  had,  against  a right 
claimed  under  the  Constitution,  laws  or  treaties  of  the 
United  States. 

President  Washington,  on  the  very  day  of  his  approval 
of  that  act,  nominated  John  Jay,  of  New  York,  as  Chief 
Justice;  and  John  Rutledge,  of  South  Carolina,  William 
Cushing,  of  Massachusetts,  Robert  H.  Harrison,  of  Mary- 
land, James  Wilson,  of  Pennsylvania,  and  John  Blair,  of 
Virginia,  as  Associate  Justices  of  the  Supreme  Court; 
and  the  nominations  were  all  confirmed  by  the  Senate  on 
the  26th  of  September.  The  commissions  of  Chief  Justice 
Jay  and  of  Mr.  Justice  Rutledge  were  dated  on  that  day, 
and  those  of  the  other  Justices  on  successive  days,  in  the 
order  above  named,  thus  determining  their  precedence. 
President  Washington,  in  a letter  to  each  of  the  Asso- 
ciate Justices,  informing  him  of  his  appointment,  re- 
marked, “ Considering  the  judicial  system  as  the  chief 
pillar  upon  which  our  National  Government  must  rest;” 
and  in  a letter  to  the  Chief  Justice,  enclosing  his  commis- 
sion, said  that  the  judicial  department  “ must  be  consid- 
ered as  the  keystone  of  our  political  fabric.” 

During  the  first  twelve  years  of  the  Supreme  Court, 
there  were  frequent  changes  in  its  membership : three  by 
the  appointees  preferring  high  offices  in  the  governments 
of  their  several  States;  three  others  by  resignation ; one 
by  rejection  by  the  Senate ; and  two  by  death. 

Rutledge  never  sat  in  the  Supreme  Court  as  Associate 
Justice,  and  in  1791  resigned  the  office  to  accept  that  of 
Chief  Justice  of  South  Carolina.  Harrison  declined  his 
appointment,  preferring  to  become  Chancellor  of  Mary- 
land. James  Iredell,  of  North  Carolina,  was  appointed 


5 


in  1790,  in  the  stead  of  Harrison;  and  Thomas  Johnson, 
of  Maryland,  in  1791 , in  the  place  of  Rutledge.  The  other 
Associate  Justices  before  1801  were  two  appointed  by 
President  Washington  : William  Paterson,  of  New  Jersey, 
in  1793,  in  the  place  of  Thomas  Johnson,  resigned ; and 
Samuel  Chase,  of  Maryland,  in  1796,  upon  the  resignation 
of  Blair;  and  two  appointed  by  President  John  Adams: 
Bushrod  Washington,  of  Virginia,  in  1798,  upon  the  death 
of  Wilson;  and  Alfred  Moore,  of  North  Carolina,  in  1799, 
upon  the  death  of  Iredell. 

President  Washington,  in  his  eight  years  of  office,  ap- 
pointed four  Chief  Justices  of  the  United  States;  John 
Jay  in  1789;  .John  Rutledge  in  1795;  William  Cushing 
and  Oliver  Ellsworth  in  1796.  Jay  held  the  office  for 
about  five  years  and  nine  months;  and  for  the  first  six 
months  of  that  time,  by  the  President’s  request,  also  acted 
as  Secretary  of  State.  Ellsworth  held  the  office  of  Chief 
Justice  a little  more  than  four  years  and  a half.  But 
Jay,  as  well  as  Ellsworth,  during  the  whole  of  his  last  year, 
ceased  to  perform  his  judicial  duties,  by  reason  of  being 
employed  on  a diplomatic  mission  abroad.  Rutledge, 
after  sitting  as  Chief  Justice  for  a single  term,  was 
rejected  by  the  Senate;  and  Cushing,  though  confirmed 
by  the  Senate,  declined  the  appointment,  and  remained 
an  Associate  Justice  until  his  death  in  1810.  Ellsworth 
resigned  in  1800,  owing  to  ill  health;  and  Jay  resigned 
in  1795  to  accept  the  office  of  Governor  of  the  State 
of  New  York,  and  in  1800,  towards  the  close  of  his 
second  term  of  office  as  Governor,  being  in  a depressed 
condition  of  health  and  spirits,  and  having  finally  deter- 
mined to  retire  from  public  life,  declined  a reappointment 
as  Chief  Justice,  offered  him  by  President  Adams  on  the 
resignation  of  Ellsworth. 

John  Marshall,  then  Secretary  of  State,  was  nominated 
as  Chief  Justice  of  the  United  States  by  President  Adapas 
on  the  20th,  confirmed  by  the  Senate  on  the  27th,  and 
commissioned  on  the  31st  of  January,  1801, 


6 


His  characteristic  letter  of  acceptance,  addressed  to  the 
President,  and  dated  February  4th,  1801,  was  in  these 
words: 

“Sir:  I pray  you  to  accept  my  grateful  acknowledg- 
ments for  the  honor  conferred  on  me  in  appointing  me 
Chief  Justice  of  the  United  States. 

“ This  additional  and  flattering  mark  of  your  good 
opinion  has  made  an  impression  on  my  mind  which  time 
will  not  efface. 

“ I shall  enter  immediately  on  the  duties  of  the  office, 
and  hope  never  to  give  you  occasion  to  regret  having 
made  this  appointment. 

“ With  the  most  respectful  attachment, 

“ I am,  Sir, 

“ Your  obedient  servant, 

“J.  Marshall.” 

On  the  same  day,  as  is  stated  on  the  record  of  the 
Supreme  Court,  his  commission  as  Chief  Justice,  “bear- 
ing date  the  31st  day  of  January,  A.  I).  1801,  and  of  the 
Independence  of  the  United  States  the  twenty-fifth,”  was 
“ read  in  open  Court,  and  the  said  John  Marshall,  having 
taken  the  oaths  prescribed  by  law,  took  his  seat  upon  the 
Bench.” 

In  speaking  of  one  who  has  been  for  a hundred  years 
the  central  and  predominant  figure  in  American  juris- 
prudence, little  more  can  be  expected,  at  this  day,  than 
to  echo  what  has  been  better  said  by  others.  Almost  the 
whole  ground  was  covered,  long  ago,  b}^  Mr.  Binney,  in 
the  admirable  eulogy  delivered  before  the  Councils  of  the 
City  of  Philadelphia  on  the  24th  of  September,  1835,  the 
eightieth  anniversary  of  the  Chief  Justice’s  birth,  and 
within  three  months  after  his  death  ; and  by  Mr.  Justice 
Story,  in  the  interesting  essay,  first  published  in  the  North 
American  Review  in  1828,  and  again,  with  some  changes, 
in  the  American  National  Portrait  Gallery  in  1833,  and 
finally  developed  into  his  discourse  before  the  Suffolk 


7 


Baron  the  15th  of  October,  1885,  and  containing  much 
information  derived  from  the  Chief  Justice  himself. 

In  the  researches  incited  by  your  invitation,  my  first 
and  most  important  discovery  was  a letter  from  Chief 
Justice  Marshall,  dated  “ Richmond,  March  22d,  1818,” 
and  addressed  to  “Joseph  Delaplaine,  Esq.,  Philadelphia.” 
Delaplaine  was  then  publishing,  in  numbers,  his  Reposi- 
tory of  the  Lives  and  Portraits  of  Distinguished  Ameri- 
can Characters,  which  was  discontinued  soon  afterwards, 
without  ever  including  Marshall.  The  letter  purports 
to  have  been  written  in  answer  to  one  “requesting  some 
account  ol  my  birth,  parentage,  &c.,”  and  contains  a short 
autobiography. 

My  earliest  knowledge  of  the  existence  of  such  an  auto- 
biography was  obtained  from  a thin  pamphlet,  published 
at  Columbus,  Ohio,  in  1848;  found  in  an  old  bookstore  in- 
Boston;  and  containing  (besides  Marshall’s  famous  speech 
in  Congress  on  the  case  of  Jonathan  Robbins)  only 
this  letter,  entitling  it  “Autobiography  of  John  Marshall.” 
The  internal  evidence  of  its  genuineness  is  very  strong; 
and  its  authenticity  is  put  almost  beyond  doubt  by  a fac- 
simile (recently  shown  me  in  your  State  Library)  of  a folio 
sheet  in  Marshall’s  handwriting,  which,  although  it  con- 
tains neither  the  whole  of  the  letter,  nor  its  address,  bears 
the  same  date,  and  does  contain  the  principal  paragraph 
of  the  letter,  word  for  word,  with  the  corrections  of  the 
original  manuscript,  and  immediately  followed  by  his 
signature. 

An  autobiography  of  Marshall  is  of  so  much  interest, 
that  no  apology  is  necessary  for  quoting  it  in  full. 
Except  for  one  or  two  slips  of  the  pen,  corrected  in  the 
printed  pamphlet,  it  is  as  follows: 

“ I was  born  on  the  24th  of  September,  1755,  in  the 
county  of  Fauquier  in  Virginia.  My  father,  Thomas 
Marshall,  was  the  eldest  son  of  John  Marshall,  who  in- 
termarried with  a Miss  Markham,  and  whose  parents 
migrated  from  Wales,  and  settled  in  the  county  of  West- 


8 


moreland  in  Virginia,  where  my  father  was  horn.  My 
mother  was  named  Mary  Keith;  she  was  the  daughter  of 
a clergyman  of  the  name  of  Keith  who  migrated  from 
Scotland,  and  intermarried  with  a Miss  Randolph  on 
James  River.  I was  educated  at  home,  under  the  direc- 
tion of  my  father,  who  was  a planter,  but  was  often  called 
from  home  as  a surveyor.  From  my  infancy  I was  des- 
tined for  the  bar;  but  the  contest  between  the  mother 
country  and  her  colonies  drew  me  from  my  studies  and 
my  father  from  the  superintendence  of  them  ; and  in  Sep- 
tember, 1775,  I entered  into  the  service  as  a subaltern. 
I continued  in  the  army  until  the  year  1781,  when,  being 
without  a command,  I resigned  my  commission,  in  the 
interval  between  the  invasions  of  Virginia  by  Arnold  and 
Phillips.  In  the  year  1782,  I was  elected  into  the  legis- 
lature of  Virginia;  and  in  the  fall  session  of  the  same 
year,  was  chosen  a member  of  the  executive  council  of 
that  State.  In  January,  1783,  I intermarried  with  Mary 
Willis  Ambler,  the  second  daughter  of  Mr.  Jacquelin 
Ambler,  then  treasurer  of  Virginia,  who  was  the  third 
son  of  Mr.  Richard  Ambler,  a gentleman  who  had 
migrated  from  England,  and  settled  at  Yorktown  in  Vir- 
ginia. In  April,  1784,  I resigned  my  seat  in  the  execu- 
tive council,  and  came  to  the  bar,  at  which  I continued, 
declining  any  other  public  office  than  a seat  in  the  legis- 
lature, until  the  year  1797,  when  I was  associated  with 
General  Pinckney  and  Mr.  Gerry  in  a mission  to  France. 
In  1798,1  returned  to  the  United  States;  and  in  the 
spring  of  1799  was  elected  a member  of  Congress,  a can- 
didate for  which,  much  against  my  inclination,  I was  in- 
duced to  become  by  the  request  of  General  Washington. 
At  the  close  of  the  first  session,  I was  nominated,  first  to 
the  Department  of  War,  and  afterwards  to  that  of  State, 
which  last  office  I accepted,  and  in  which  I continued 
until  the  beginning  of  the  year  1801,  when  Mr.  Ellsworth 
having  resigned,  and  Mr.  Jay  having  declined  his  ap- 
pointment, I was  nominated  to  the  office  of  Chief  Justice, 
which  I still  hold. 


9 


“ I am  the  oldest  of  fifteen  children,  all  of  whom  lived  to 
he  married,  and  of  whom  nine  are  now  living.  My  father 
died  when  about  seventy-four  years  of  age;  and  my 
mother,  who  survived  him  about  seven  years,  died  about 
the  same  age.  I do  not  recollect  all  the  societies  to  which 
I belong,  though  they  are  very  numerous.  I have  written 
no  book,  except  the  Life  of  Washington,  whicli  was  exe- 
cuted with  so  much  precipitation  as  to  require  much  cor- 
rection.” 

This  brief  outline  of  an  autobiography,  besides  its 
intrinsic  value  as  a whole,  is  notable  in  several  partic- 
ulars. It  shows  that  .John  Marshall  was  of  Welsh,  and 
of  Scotch,  as  well  as  of  English  descent;  and  this  through 
persons  who  had  not  recently  come  over,  but  had  all  been 
in  this  country  long  enough  to  become  truly  Americans. 
It  attests,  over  his  own  hand,  that  he  was  educated  at 
home  under  his  father’s  superintendence  and  direction, 
and  was  destined  from  infancy  for  the  bar;  and  also  that 
it  was  by  the  request  of  General  Washington,  and  much 
against  his  own  inclination,  that  he  was  induced  to 
become  a candidate  for  Congress. 

Marshall  passed  his  boyhood  and  early  youth  in  the 
country,  in  a healthful  climate  and  beautiful  scenery, 
fond  of  field  sports  and  athletic  exercises,  living  in  a 
house  containing  a good  English  library,  the  eldest  of  a 
large  family  of  children,  under  the  guidance  and  in  the 
companionship  of  a father  of  strong  natural  abilities,  and 
to  whom,  as  he  used  to  say,  he  owed  the  solid  foundation 
of  all  his  own  success  in  life.  As  Mr.  Binney  says:  “ It 
is  the  praise  and  the  evidence  of  the  native  powers  of 
his  mind,  that  by  domestic  instruction,  and  two  years 
of  grammatical  and  classical  tuition  obtained  from  other 
sources,  Mr.  Marshall  wrought  out  in  after  life  a com- 
prehensive mass  of  learning  both  useful  and  elegant, 
which  accomplished  him  for  every  station  that  he  filled, 
and  he  filled  the  highest  of  more  than  one  description.” 

He  was  licensed  to  practice  law  in  1780,.  and  soon 


10 


became  one  of  the  leaders  of  the  bar  of  Virginia.  The 
Reports  of  Bushrod  Washington  and  of  Daniel  Call  show 
that  hardly  any  one  argued  so  many  cases  before  the 
Court  of  Appeals  of  the  State. 

He  was  chosen  in  the  spring  of  1782  a representative 
in  the  legislature  of  Virginia,  and  in  the  fall  of  the  same 
year  a member  of  the  executive  council  of  the  State.  He 
also  served  in  the  legislature  in  the  years  1784,  1787  to 
1792  and  1795. 

Tn  the  convention  of  Virginia  of  1788  upon  the  adop- 
tion of  the  Constitution  of  the  United  States,  Patrick 
Henry,  George  Mason  and  William  Grayson  were  the 
principal  opponents  of  the  Constitution,  and  James  Madi- 
son, Governor  Randolph,  George  Nicholas,  Edmund  Pen- 
dleton and  John  Marshall  its  leading  supporters ; and  at 
the  close  of  its  proceedings  Marshall  (then  only  thirty^- 
three  years  of  age)  was  made  a member,  both  of  the  com- 
mittee to  report  a form  of  ratification,  and  of  the  com- 
mittee to  report  such  amendments  as  by  them  should  be 
deemed  necessary  to  be  recommended  ; and  the  only  other 
persons  who  were  on  both  committees  were  Randolph, 
Nicholas  and  Madison. 

Patrick  Henry  said  of  him  in  that  convention  : “ I have 
the  highest  veneration  and  respect  for  the  honorable  gen- 
tleman ; and  I have  experienced  his  candour  upon  all  occa- 
sions.” And  ten  years  after,  when  Marshall  was  a candi- 
date for  Congress,  it  being  represented  that  Henry  was 
opposed  to  him,  he  wrote  and  published  a letter  saying 
that  he  should  give  him  his  vote  for  Congress  preferably 
to  any  citizen  of  the  State,  General  Washington  only 
excepted. 

President  Washington  offered  Marshall  the  District- 
Attorneyship  for  the  District  of  Virginia  in  1789,  and 
the  Attorney-Generalship,  and  the  mission  to  France, 
in  1796.  President  Adams  offered  him  the  office  of 
Associate  Justice  of  the  Supreme  Court  in  1798,  upon  the 
death  of  Mr.  Justice  Wilson,  and  before  appointing  Bush- 
rod  Washington. 


11 


In  1799,  Marshall  delivered  in  the  House  of  Representa- 
tives the  speech  vindicating  the  right  and  the  duty  of  the 
President  to  surrender  Jonathan  Robbins  to  the  British 
Government  for  trial  for  a murder  on  a British  ship,  of 
which  Mr.  Binney  justly  says,  that  it  has  all  the  merits, 
and  nearly  all  the  weight  of  a judicial  sentence;  and  Mr. 
Justice  Story,  that  it  placed  him  at  once  in  the  front 
rank  of  constitutional  statesmen,  and  settled  then,  and 
forever,  the  points  of  national  law  upon  which  the  con- 
troversy hinged. 

Mr.  Wirt,  himself  eminent  as  a lawyer  and  as  an  orator, 
who  began  the  practice  of  the  law  but  ten  years  later  than 
Marshall,  and  who  knew  him  well,  both  at  the  bar  and 
on  the  bench,  was  so  impressed  with  his  style  of  argu- 
ment, that  he  returned  to  it  again  and  again  in  his 
letters,  which  are  the  more  interesting  because  of  the  abso- 
lute contrast  between  the  two  men  in  that  respect. 

In  the  Letters  of  a British  Spy,  first  published  in  1803, 
speaking  of  Marshall  at  the  bar,  Mr.  Wirt  said:  “This 
extraordinary  man,  without  the  aid  of  fancy,  with- 
out the  advantages  of  person,  voice,  attitude,  gesture,  or 
any  of  the  ornaments  of  an  orator,  deserves  to  be  consid- 
ered as  one  of  the  most  eloquent  men  in  the  world;  if 
eloquence  may  be  said  to  consist  in  the  power  of  seizing 
the  attention  with  irresistible  force,  and  never  permitting 
it  to  elude  the  grasp  until  the  hearer  has  received  the  con- 
viction which  the  speaker  intends.”  “ He  possesses  one 
original,  and  almost  supernatural  faculty:  the  faculty  of 
developing  a subject  by  a single  glance  of  his  mind,  and 
detecting,  at  once,  the  very  point  on  which  every  contro- 
versy depends.  No  matter  what  the  question ; though  ten 
times  more  knotty  than  ‘ the  gnarled  oak,’  the  lightning  of 
heaven  is  not  more  rapid,  nor  more  resistless,  than  his 
astonishing  penetration.  Nor  does  the  exercise  of  it 
seem  to  cost  him  an  effort.  On  the  contrary,  it  is  as  easy 
as  vision.  I am  persuaded  that  his  eyes  do  not  fly  over 
a landscape,  and  take  in  its  various  objects  with  more 


12 


promptitude  and  facility,  than  his  mind  embraces  and 
analyzes  the  most  complex  subject.  Possessing  this  intel- 
lectual elevation  which  enables  him  to  look  down  and 
comprehend  the  whole  ground  at  once,  he  determines  im- 
mediately, and  without  difficulty,  on  which  side  the  ques- 
tion may  be  most  advantageously  approached  and  assailed. 
In  a bad  cause,  his  art  consists  in  laying  his  premises  so 
remotely  from  the  point  directly  in  debate,  or  else  in 
terms  so  general  and  so  specious,  that  the  hearer,  seeing 
no  consequence  which  can  be  drawn  from  them,  is  just 
as  willing  to  admit  them  as  not;  but  his  premises 
once  admitted,  the  demonstration,  however  distant,  fol- 
lows as  certainly,  as  cogently,  as  inevitably,  as  any 
demonstration  in  Euclid.  All  his  eloquence  consists  in 
the  apparently  deep  self-conviction  and  emphatic  earnest- 
ness of  his  manner;  the  correspondent  simplicity  and 
energy  of  his  style;  the  close  and  logical  connection  of 
his  thoughts;  and  the  easy  gradations  by  which  he  opens 
his  lights  on  the  attentive  minds  of  his  hearers.” 

Again,  in  a letter  of  May  6th,  1806,  to  Benjamin 
Edwards,  a friend  of  his  youth,  Mr.  Wirt  wrote:  “Here  is 
John  Marshall,  whose  mind  seems  to  be  little  else  than 
a mountain  of  barren  stupendous  rocks,  an  inexhaustible 
quarry  from  which  he  draws  his  materials  and  builds  his 
fabrics,  rude  and  gothic,  but  of  such  strength  that  neither 
time  nor  force  can  beat  them  down;  a fellow  who  would 
not  turn  off  a single  step  from  the  right  line  of  his  argu- 
ment, though  a paradise  should  rise  to  tempt  him.” 

Once  more,  on  December  20th,  1833,  within  two  months 
of  his  own  death,  in  a letter  of  advice  to  a law  student,  he 
wrote:  “Learn  (I  repeat  it)  to  think — to  think  deeply,  com- 
prehensively,  mwerfully — and  learn  the  simple,  nervous 
language  which  is  appropriate  to  that  kind  of  thinking. 
Read  the  legal  and  political  arguments  of  Chief  Justice 
Marshall,  and  those  of  Alexander  Hamilton,  which  are 
coming  out.  Read  them,  study  them;  and  observe  with 
what  an  omnipotent  sweep  of  thought  they  range  over  the 


13 


whole  field  of  every  subject  they  take  in  hand — and  that 
with  a scythe  so  ample  and  so  keen,  that  not  a straw  is 
left  standing  behind  them.” 

Before  Marshall  became  Chief  Justice,  very  few  casespof 
constitutional  law  were  decided  by  the  Supreme  Court. 

The  most  important  one  was  the  case  of  Chisholm 
against  the  State  of  Georgia,  in  which  it  was  held  in  1793, 
by  Chief  Justice  Jay  and  his  associates,  Mr.  Justice  Iredell 
dissenting,  that  the  Supreme  Court  had  original  jurisdic- 
tion of  an  action  brought  against  a State  by  a citizen  of 
another  State.  That  decision  proceeded  upon  the  ground 
that  such  was  the  effect  of  the  Constitution,  established 
by  the  people  in  their  sovereign  capacity.  But  it  was 
inconsistent  with  the  view  which  had  been  maintained  by 
Marshall  in  the  Virginia  convention  of  1788;  and  it 
was  presently,  as  the  Supreme  Court  has  since  said, 
reversed  and  overruled  by  the  people  themselves,  in 
the  Eleventh  Amendment  of  the  Constitution,  which 
declared  that  “ the  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law 
or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State,  or  by  citizens 
or  subjects  of  any  foreign  State.” 

Two  cases  from  the  Virginia  Circuit  were  argued  at 
Philadelphia,  in  February,  1796,  before  Justices  Cushing, 
Wilson,  Paterson  and  Chase,  just  before  the  appointment 
of  Chief  Justice  Ellsworth.  In  one  of  them,  Ware  against 
Hylton,  the  case  of  the  British  debts,  Marshall  was  of 
counsel  against  the  debts,  and  the  court  held  them  to  be 
protected  by  the  treaty  of  peace.  In  the  other,  Hylton 
against  the  United  States,  in  which  the  court  upheld  the 
constitutionality  of  the  carriage  tax,  Marshall  is  said  by 
Judge  Tucker  to  have  been  of  counsel  against  the  tax  in 
the  Circuit  Court;  and  Mr.  Wirt,  in  a letter  to  Francis  W. 
Gilmer  of  November  2d,  1818,  more  than  twenty  years 
after,  spoke  of  Marshall  as  having  argued  this  case  in 
Philadelphia ; but  Mr.  Wirt  probably  had  in  mind  the 
case  of  the  British  debts. 


14 


John  Marshall  was  Chief  Justice  of  the  United  States 
for  more  than  thirty-four  years,  from  his  taking  the  oath  of 
office  on  February  4th,  1801,  to  his  death  on  July  6th,  1835. 

After  his  accession,  the  changes  in  the  membership  of 
the  Supreme  Court  became  much  less  frequent  than  they 
had  been  during  the  earlier  }^ears  of  the  court.  Of  the 
Associate  Justices  on  the  bench  at  the  time  of  his  appoint- 
ment, Moore  continued  to  serve  for  three  years ; Paterson 
for  nearly  five  years;  Cushing  and  Chase  for  nearly 
eleven  years;  and  Bushrod  Washington  for  nearly  twenty- 
nine  years.  William  Johnson,  appointed  on  the  resigna- 
tion of  Moore  in  1804,  served  thirty  years,  dying  within 
a year  before  Chief  Justice  Marshall;  Livingston,  ap- 
pointed on  the  death  of  Paterson  in  1806,  served  sixteen 
years;  Todd,  appointed  in  1807,  (under  an  act  of  Con- 
gress increasing  the  number  of  Associate  Justices  to  six,) 
nineteen  years;  and  Duvall,  appointed  in  1811,  on  the  death 
of  Chase,  twenty-three  years,  resigning  in  January,  1835. 
Story,  also  appointed  in  1811,  on  the  death  of  Cushing, 
served  nearly  thirty-four  years;  and  Thompson,  appointed 
in  1823,  on  the  death  of  Livingston,  twenty  years.  Trim- 
ble, appointed  in  1826,  on  the  death  of  Todd,  died  in  little 
more  than  two  years;  and  McLean,  appointed  in  his 
place  in  1829,  served  thirty-two  years.  Justices  Story, 
Thompson  and  McLean  remained  on  the  bench  at  the 
time  of  Chief  Justice  Marshall’s  death.  The  other  Asso- 
ciate Justices  at  that  time  were  Baldwin,  appointed  in 
1830,  on  the  death  of  Bushrod  Washington;  and  Wayne, 
appointed  January  5th,  1835,  in  the  place  of  William 
Johnson. 

Chief  Justice  Marshall’s  conduct  in  regard  to  the  ap- 
pointment of  some  of  his  associates  is  worthy  of  mention. 

On  the  death  of  Mr.  Justice  Trimble  in  182S,  President 
John  Quincy  Adams  offered  his  place  to  Henry  Clay,  who 
declined  it,  and  (as  Mr.  Adams  states  in  his  diary)  “ read 
me  a letter  from  Chief  Justice  Marshall,  speaking  very 
favorably  of  J.  J.  Crittenden  to  fill  the  office  of  Judge  of 


15 


the  Supreme  Court,  but  declining  to  write  to  me.”  Crit- 
tenden was  nominated  by  President  Adams,  but  was  not 
confirmed  by  the  Senate. 

In  January,  1835,  upon  the  resignation  of  Mr.  Justice 
Duvall,  President  Jackson  nominated  Roger  B.  Taney  as 
Associate  Justice  in  bis  place.  While  the  nomination 
was  pending  before  the  Senate,  Chief  Justice  Marshall 
wrote  a note  to  Mr.  Leigh,  then  a Senator  from  Virginia, 
in  these  terms:  “If you  have  not  made  up  your  mind  on 
the  nomination  of  Mr.  Taney,  I have  received  some  in- 
formation in  his  favor  which  I would  wish  to  communi- 
cate.” Taney’s  nomination  as  Associate  Justice  was  in- 
definitely postponed  by  the  Senate;  but  within  a year 
afterwards,  upon  the  death  of  Chief  Justice  Marshall,  he 
was  nominated  and  confirmed  as  Chief  Justice  of  the 
United  States. 

Before  Marshall’s  appointment,  the  practice  appears  to 
have  been  for  all  the  justices  to  deliver  their  opinions  seri- 
atim— a practice  which  tends  to  bring  into  prominence  the 
subordinate  points  of  view  in  which  they  differ,  and  to 
obscure  the  principal  point  on  which  they  agree;  and, 
while  it  sometimes  makes  the  report  of  the  case  more  in- 
teresting, tends  to  impair  its  weight  as  a precedent  for  the 
determination  of  future  controversies.  Under  Marshall, 
all  subordinate  differences  seem  to  have  been  settled  in 
conference,  or  at  any  rate  less  often  displayed  to  the  public; 
and  the  opinion  of  the  court  was  usually  delivered  by  one 
justice,  and  in  the  majority  of  important,  and  especially 
of  constitutional  cases,  by  Marshall  himself.  During  his 
time  there  were  few  dissenting  opinions. 

The  only  constitutional  case  in  which  Chief  Justice  Mar- 
shall dissented  from  the  judgment  of  the  court  was 
Ogden  against  Saunders  in  1827, which  was  decided  by  a 
bare  majority  of  the  court  against  the  opinion  of  Mar- 
shall, Duvall  and  Story.  But  in  Boyle  against  Zacharie 
in  1832,  notwithstanding  a change  in  the  membership  of 
the  court,  Marshall  declared  that  the  principles  estab- 


16 


lished  in  the  former  opinion  were  to  be  considered  no 
longer  open  for  controversy. 

Chief  Justice  Marshall,  as  appears  by  letters  from  him 
to  his  associates  on  April  18th,  1802,  was  originally  of 
opinion  that  the  Justices  of  the  Supreme  Court  could 
not  hold  Circuit  Courts  without  distinct  commissions  as 
circuit  judges.  But  in  Stuart  against  Laird  in  1803,  ap- 
parently deferring  to  the  opinions  of  his  associates,  he  acted 
as  circuit  judge  ; and  the  Supreme  Court,  in  an  opinion 
delivered  by  Mr.  Justice  Paterson,  affirmed  his  judgment, 
upon  the  ground  that  practice  and  acquiescence  for 
several  years,  commencing  with  the  organization  of  the 
judicial  system,  had  fixed  the  construction  beyond  dispute. 

Marshall’s  judicial  demeanor  is  best  stated  in  the  words 
of  an  eye-witness.  Mr.  Binney,  who  had  been  admitted 
to  the  bar  of  the  Supreme  Court  in  1809,  and  who  had 
often  practised  before  him,  tells  us: 

“ He  was  endued  by  nature  with  a patience  that  was 
never  surpassed — patience  to  hear  that  which  he  knew 
already,  that  which  he  disapproved,  that  which  questioned 
himself.  When  he  ceased  to  hear,  it  was  not  because  his 
patience  was  exhausted,  but  because  it  ceased  to  be  a 
virtue. 

“His  carriage  in  the  discharge  of  his  judicial  business 
was  faultless.  Whether  the  argument  was  animated  or 
dull,  instructive  or  superficial,  the  regard  of  his  expres- 
sive eye  was  an  assurance  that  nothing  that  ought  to 
affect  the  cause  was  lost  by  inattention  or  indifference ; 
and  the  courtesy  of  his  general  manner  was  only  so  far 
restrained  on  the  bench,  as  was  necessary  for  the  dignity 
of  office,  and  for  the  suppression  of  familiarity. 

“ His  industry  and  powers  of  labor,  when  contemplated 
in  connection  with  his  social  temper,  show  a facility  that 
does  not  generally  belong  to  parts  of  such  strength.” 

“To  qualities  such  as  these,  he  joined  an  immovable 
firmness  befitting  the  office  of  presiding  judge  in  the 
highest  tribunal  of  the  country.  It  was  not  the  result  of 


17 


excited  feeling,  and  consequently  never  rose  or  fell  with 
the  emotions  of  the  day.  It  was  the  constitution  of  his 
nature,  and  sprung  from  the  composure  of  a mind  undis- 
turbed by  doubt,  and  of  a heart  unsusceptible  of  fear.” 

“ In.him  his  country  have  seen  that  triple  union  of  law- 
yer, statesman,  and  patriot,  which  completes  the  frame 
of  a great  constitutional  judge.” 

He  had  not  the  technical  learning  in  the  common 
law  of  Coke,  or  of  several  of  Coke’s  successors.  But,  in  the 
felicitous  words  of  Mr.  Justice  Story,  “ he  seized,  as  it 
were  by  intuition,  the  very  spirit  of  juridical  doctrines, 
though  cased  up  in  the  armor  of  centuries;  and  he  dis- 
cussed authorities,  as  if  the  very  minds  of  the  judges 
themselves  stood  disembodied  before  him.” 

He  had  not  the  learning  of  Nottingham  or  of  Hard- 
wicke  in  the  jurisdiction  and  practice  of  the  court  of  chan- 
cery, or  of  Mansfield  in  the  general  maritime  law.  But 
his  judgments  show  that  he  was  a master  of  the  principles 
of  equity,  and  of  commercial  law. 

He  had  not  the  elegant  scholarship  of  Stowell.  But  it 
is  not  too  much  to  say  that  his  judgments  in  prize  causes 
exhibit  a broader  and  more  truly  international  view  of 
the  law  of  prize.  Upon  the  question  of  the  exemption 
of  ships  of  war  and  some  other  ships,  it  was  observed 
by  Lord  Justice  Brett  in  the  English  Court  of  Appeal  in 
1880,  “the  first  case  to  be  carefully  considered  is,  and 
always  will  be,  The  Exchange,”  decided  by  Chief  Justice 
Marshall  in  1812. 

The  jurisdiction  of  the  court  over  which  he  presided 
was  not  confined  to  one  department  or  branch  of  the  law; 
it  included  common  law,  equity,  maritime  law,  the  law 
of  admiralty  and  prize,  and,  in  some  degree,  the  civil  law 
of  Spain  and  of  France. 

Beyond  all  this,  the  jurisdiction  of  his  court  extended 
to  constitutional  law,  in  a more  comprehensive  sense  than 
ever  belonged  to  the  courts  of  any  other  country. 


2 


18 


In  England,  there  is  no  law  of  higher  sanction  than 
an  act  of  Parliament;  and  Parliament  has  uncontrolled 
power  to  change  or  to  repeal  even  Magna  Charta.  It  is 
otherwise  in  this  country. 

One  of  the  earliest  and  most  important  judgments  of 
Marshall  is  Marbury  against  Madison,  decided  in  1803, 
in  which  the  paramount  obligation  of  the  Constitution 
over  all  ordinary  statutes  was  declared  and  established 
by  a course  of  reasoning  which  may  be  indicated  by  a 
few  extracts  from  the  opinion. 


“ The  Constitution  is  either  a superior  paramount  law, 
unchangeable  by  ordinary  means;  or  it  is  on  a level  with 
ordinary  legislative  acts,  and,  like  other  acts,  is  alterable 
when  the  legislature  shall  please  to  alter  it.  If  the  former 
part  of  the  alternative  be  true,  then  a legislative  act  con- 
trary to  the  Constitution  is  not  law;  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on 
the  part  of  the  people,  to  limit  a power  in  its  own  nature 
illimitable. 

“Certainly  all  those  who  have  framed  written  con-j| 
stitutions  contemplate  them  as  forming  the  fundamental 
and  paramount  law  of  the  nation,  and  consequently  the 
theory  of  every  such  government  must  be,  that  an  act  of 
the  legislature,  repugnant  to  the  Constitution,  is  void. 
This  theory  is  essentially  attached  to  a written  consti- 
tution, and  is  consequently  to  be  considered  by  this  court 
as  one  of  the  fundamental  principles  of  our  society.” 

“ It  is  emphatically  the  province  and  duty  of  the  judi- 
cial department  to  say  what  the  law  is.  Those  who  apply 
the  rule  to  particular  cases  must  of  necessity  expound 
and  interpret  that  rule.  If  two  laws  conflict  with  each 
other,  the  courts  must  decide  on  the  operation  of  each. 
So  if  a law  be  in  opposition  to  the  Constitution;  if  both 
the  law  and  the  Constitution  apply  to  a particular  case, 
so  that  the  court  must  either  decide  that  case  conformably 
to  the  law,  disregarding  the  Constitution  ; or  conformably 
to  the  Constitution,  disregarding  the  law;  the  court  must 


19 


determine  which  of  these  conflicting  rules  governs  the 
case.  This  is  of  the  very  essence  of  judicial  duty.  If  then, 
the  courts  are  to  regard  the  Constitution,  and  the  Constitu- 
tion is  superior  to  any  ordinary  act  of  the  legislature,  the 
Constitution,  and  not  such  ordinary  act,  must  govern  the 
case  to  which  they  both  apply.” 

“ The  particular  phraseology  of  the  Constitution  of  the 
United  States  confirms  and  strengthens  the  principle, 
supposed  to  be  essential  to  all  written  constitutions,  that 
a law  repugnant  to  the  Constitution  is  void ; and  that 
courts , as  well  as  other  departments,  are  bound  by  that 
instrument.” 

In  the  light  of  experience,  it  is  curious  to  look  back 
upon  the  doubt  and  apprehension  entertained  by  some 
of  the  Northern  Federalists  with  regard  to  Marshall 
shortly  before  he  became  Chief  Justice.  For  instance, 
on  the  29th  of  December,  1799,  when  he  had  just  en- 
tered the  House  of  Representatives,  Oliver  Wolcott, 
then  Secretary  of  the  Treasury  under  President  Adams, 
wrote  to  Fisher  Ames:  “He  is  doubtless  a man  of 
virtue  and  distinguished  talents;  but  he  will  think  much 
of  the  State  of  Virginia,  and  is  too  much  disposed  to 
govern  the  world  according  to  rules  of  logic;  he  will 
read  and  expound  the  Constitution  as  if  it  were  a penal 
statute,  and  will  sometimes  be  embarrassed  with  doubts  of 
which  his  friends  will  not  perceive  the  importance.” 

Why  should  he  not  “think  much  of  the  State  of  Vir- 
ginia?” What  State  of  the  Union  had  produced  such  a 
galaxy  of  great  men?  And  what  American,  worthy  of 
the  name,  does  not  cherish  a peculiar  affection  for  the 
State  of  his  birth  and  his  home?  But  such  an  affection 
for  one’s  own  State  is  by  no  means  incompatible  with  a 
paramount  allegiance  and  devotion  to  the  United  States 
as  one’s  country.  There  is  no  more  striking  illustration 
of  this  truth  than  Chief  Justice  Marshall  himself. 

It  was  upon  writs  of  error  to  the  highest  court  of  Vir- 
ginia in  which  a decision  in  the  case  could  be  had — at  first 


20 


in  1816,  in  the  case  of  Martin  against  Hunter’s  Lessee, 
a case  between  private  individuals;  and  afterwards  in 
1821,  in  the  case  of  Cohens  against  Virginia,  a criminal 
prosecution  instituted  by  the  State — that  the  Supreme 
Court,  under  the  lead  of  Chief  Justice  Marshall,  up- 
held and  established  its  appellate  jurisdiction,  under 
the  Constitution  and  the  Judiciary  Act,  to  review  the 
judgment  of  the  State  court  against  a right  claimed  under 
the  Constitution  or  the  laws  of  the  United  States.  In  the 
first  case,  indeed,  perhaps  because  it  came  from  his  own 
State,  he  allowed  Mr.  Justice  Story  to  draw  up  the  opinion 
of  the  court.  But  in  the  second  case  he  himself  expressed 
the  unanimous  conclusion  of  the  court  in  one  of  his  most 
elaborate  and  most  powerful  judgments. 

The  idea  that  he  would  “ read  and  expound  the  Con- 
stitution as  if  it  were  a penal  statute”  seems  now  almost 
ludicrous.  Take,  for  instance,  his  judgments  in  the  cases 
of  McCulloch  against  Maryland  in  1819,  and  of  Wiltberger 
in  1820.  In  Wiltberger’s  case,  he  clearly  stated  the  reasons 
and  the  limits  of  the  rule  that  penal  statutes  are  to  be  con- 
strued strictly.  But  in  McCulloch’s  case,  when  dealing 
with  the  question  what  powers  may  be  implied  from  the 
express  grants  to  Congress  in  the  Constitution,  he  said : “A 
constitution,  to  contain  an  accurate  detail  of  all  the  sub- 
divisions of  which  its  great  powers  will  admit,  and  of  all 
the  means  by  which  they  may  be  carried  into  execution, 
would  partake  of  the  prolixity  of  a legal  code,  and  could 
hardly  be  embraced  by  the  human  mind.  It  would  prob- 
ably never  be  understood  by  the  public.  Its  nature, 
therefore,  requires,  that  only  its  great  outlines  should  be 
marked,  its  important  objects  designated,  and  the  minor 
ingredients  which  compose  those  objects  be  deduced  from 
the  nature  of  the  objects  themselves.  That  this  idea  was 
entertained  by  the  framers  of  the  American  Constitution, 
is  not  only  to  be  inferred  from  the  nature  of  the  instru- 
ment, but  from  the  language.  Why  else  were  some  of 
the  limitations,  found  in  the  ninth  section  of  the  first 


21 


article,  introduced?  It  is  also,  in  some  degree,  warranted 
by  their  having  omitted  to  use  any  restrictive  term  which 
might  prevent  its  receiving  a fair  and  just  interpretation. 
In  considering  this  question,  then,  we  must  never  forget, 
that  it  is  a constitution  we  are  expounding.” 

In  McCulloch’s  case,  after  full  discussion,  he  thus  de- 
fined the  rule:  “We  admit,  as  all  must  admit,  that  the 
powers  of  the  government  are  limited,  and  that  its  limits 
are  not  to  be  transcended.  But  we  think  the  sound  con- 
struction of  the  Constitution  must  allow  to  the  national 
legislature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  execu- 
tion, which  will  enable  that  body  to  perform  the  high  duties 
assigned  to  it,  in  the  manner  most  beneficial  to  the  people. 
Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the 
Constitution,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional.”  “Where  the  law  is  not  prohibited, 
and  is  really  calculated  to  effect  any  of  the  objects  en- 
trusted to  the  government,  to  undertake  here  to  inquire 
into  the  degree  of  its  necessity  would  be  to  pass  the  line 
which  circumscribes  the  judicial  department,  and  to  tread 
on  legislative  ground.  This  court  disclaims  all  preten- 
sions to  such  a power.” 

Among  his  other  greatest  judgments  are  United  States 
against  Peters,  on  the  sanctity  of  judgments  of  the  courts 
of  the  United  States;  Fletcher  against  Peck,  and  Dart- 
mouth College  against  Woodward,  that  a grant  by  a State 
is  a contract,  the  obligation  of  which  cannot  afterwards 
be  impaired;  Gibbons  against  Ogden,  and  Brown  against 
Maryland,  on  the  paramount  nature  of  the  power  of  Con- 
gress to  regulate  commerce  with  foreign  nations  and 
among  the  several  States ; Sturges  against  Crowninshield, 
on  the  power  of  the  States  to  pass  insolvent  laws;  and 
Osborn  against  the  Bank  of  the  United  States,  on  the 
subject  of  suits  by  the  Bank  of  the  United  States. 


22 


But  he  gave  clue  weight  to  the  decisions  of  the  courts 
of  the  several  States,  saying,  in  Elmendorf  against  Taylor : 
“This  court  has  uniformly  professed  its  disposition,  in 
cases  depending  on  the  laws  of  a particular  State,  to  adopt 
the  construction  which  the  courts  of  the  State  have  given 
to  those  laws.  This  course  is  founded  on  the  principle, 
supposed  to  be  universally  recognized,  that  the  judicial 
department  of  every  government,  where  such  department 
exists,  is  the  appropriate  organ  for  construing  the  legis- 
lative acts  of  that  government.  Thus,  no  court  in  the 
universe,  which  professed  to  be  governed  by  principle, 
would,  we  presume,  undertake  to  say  that  the  courts  of 
Great  Britain,  or  of  France,  or  of  any  other  nation,  had 
misunderstood  their  own  statutes,  and  therefore  erect  itself 
into  a tribunal  which  should  correct  such  misunderstand- 
ing. We  receive  the  construction  given  by  the  courts  of 
the  nation  as  the  true  sense  of  the  law,  and  feel  ourselves 
no  more  at  liberty  to  depart  from  that  construction,  than 
to  depart  from  the  words  of  the  statute.  On  this  principle, 
the  construction  given  by  this  court  to  the  Constitution 
and  laws  of  the  United  States  is  received  by  all  as  the 
true  construction ; and  on  the  same  principle,  the  con- 
struction given  by  the  courts  of  the  several  States  to  the 
legislative  acts  of  those  States  is  received  as  true,  unless 
they  come  in  conflict  with  the  Constitution,  laws  or 
treaties  of  the  United  States.” 

In  the  cases  of  Bollman  and  Swartwout  in  the  Supreme 
Court,  and  in  the  trial  of  Aaron  Burr  in  this  Circuit,  he 
set  bounds  to  the  doctrine  of  constructive  treasons.  As 
showing  the  pains  taken  by  the  Chief  Justice,  it  may  be 
interesting  to  note,  what  is  not  generally  known,  that  on 
June  29th,  1807,  after  the  indictments  had  been  found 
against  Burr  and  others,  and  more  than  a month  before 
the  trial,  he  wrote  letters  to  each  of  his  associates,  asking 
their  opinions  upon  questions  of  law  that  would  arise,  and 
saying:  “I  am  aware  of  the  unwillingness  with  which  a 
judge  will  commit  himself  by  an  opinion  on  a case  not 


23 


before  him,  and  on  which  he  has  heard  no  argument. 
Could  this  case  be  readily  carried  into  the  Supreme  Court, 
I would  not  ask  an  opinion  in  its  present  stage.  But  these 
questions  must  be  decided  by  the  judges  separately  on 
their  respective  circuits,  and  I am  sure  there  would  be  a 
strong  and  general  repugnance  to  giving  contradictory 
decisions  on  the  same  points.  Such  a circumstance  would 
be  disreputable  to  the  judges  themselves,  as  well  as  to  our 
judicial  system.  This  consideration  suggests  the  propri- 
ety of  a consultation  on  new  and  difficult  subjects,  and 
will,  I trust,  apologize  for  this  letter.” 

His  letters  to  Mr.  Justice  Story  show  that  he  often  con- 
sulted him  on  admiralty  cases  pending  in  the  Circuit 
Court. 

One  is  apt  to  forget  that  Mr.  Justice  Story  was  origin- 
ally a Democrat,  and  was  appointed  to  the  court  by  James 
Madison,  a Democratic  President.  He  soon  became  a 
devoted  adherent  of  Chief  Justice  Marshall,  and  fully 
recognized  his  leadership. 

In  an  article  in  the  North  American  Review  in  1828, 
he  wrote:  “We  resume  the  subject  of  the  constitutional 
labors  of  Chief  Justice  Marshall.  We  emphatically  say, 
of  Chief  Justice  Marshall;  for  though  we  would  not  be 
unjust  to  those  learned  gentlemen  who  have  from  time 
to  time  been  his  associates  on  the  bench,  we  are  quite 
sure  that  they  would  be  ready  to  admit,  what  the  public 
universally  believe,  that  his  master  mind  has  presided 
in  their  deliberations,  and  given  to  the  results  a cogency 
of  reasoning,  a depth  of  remark,  a persuasiveness  of 
argument,  a clearness  and  elaboration  of  illustration, 
and  an  elevation  and  comprehensiveness  of  conclusion, 
to  which  none  others  offer  a parallel.  Few  decisions  upon 
constitutional  questions  have  been  made,  in  which  he  has 
not  delivered  the  opinion  of  the  court;  and  in  these  few, 
the  duty  devolved  upon  others  to  their  own  regret,  either 
because  he  did  not  sit  in  the  cause,  or  from  motives  of- 
delicacy  abstained  from  taking  an  active  part.” 


24 


Five  years  later,  in  dedicating  his  Commentaries  on  the 
Constitution  of  the  United  States  to  Chief  Justice  Marshall, 
Mr.  Justice  Story  said : “When  I look  back  upon  your 
judicial  labors  during  a period  of  thirty-two  years,  it  is 
difficult  to  suppress  astonishment  at  their  extent  and 
variety,  and  at  the  exact  learning,  the  profound  reasoning 
and  the  solid  principles  which  they  everywhere  display. 
Other  judges  have  attained  an  elevated  reputation  by 
similar  labors,  in  a single  department  of  jurisprudence. 
But  in  one  department,  (it  need  scarcely  be  said  that  I 
allude  to  that  of  constitutional  law,)  the  common  consent 
of  your  countrymen  has  admitted  you  to  stand  without 
a rival.  Posterity  will  assuredly  confirm,  by  its  deliber- 
ate award,  what  the  present  age  has  approved  as  an  act  of 
undisputed  justice.” 

Upon  two  important  points  in  which  decisions  made 
in  Chief  Justice  Marshall’s  time  have  been  since  over- 
ruled, the  later  decisions  are  in  accord  with  the  opinions 
which  he  finally  entertained. 

The  court,  in  1809,  in  opinions  delivered  by  him, 
decided  that  a corporation  aggregate  could  not  be  a citi- 
zen; and  could  not  litigate  in  the  courts  of  the  United 
States,  unless  in  consequence  of  the  character  of  its 
members,  appearing  by  proper  averments  upon  the 
record.  In  Louisville  Railroad  Company  against  Let- 
son,  in  1844,  those  decisions  w^ere  overruled;  and  it 
appears  by  the  opinion  of  the  court,  as  well  as  by  a letter 
from  Mr.  Justice  Story  to  Chancellor  Kent  of  August  31st, 
1844,  that  Chief  Justice  Marshall  had  become  satisfied 
that  the  early  decisions  were  wrong. 

In  the  case  of  The  Thomas  Jefferson,  in  1825,  it  was 
decided  by  a unanimous  opinion  of  the  court,  delivered 
by  Mr.  Justice  Stoiy,  that  the  jurisdiction  of  the  courts  of 
admiralty  of  the  United  States  was  limited  by  the  ebb 
and  flow  of  the  tide.  But  an  article  published  in  the 
New  York  Review  for  October,  1838,  by  one  who  was 
evidently  intimate  with  Chief  Justice  Marshall,  tells 


25 


us:  “He  said,  (and  he  spoke  of  it  as  one  of  the  most 
deliberate  opinions  of  his  life,)  at  a comparatively  late 
period,  that  he  had  always  been  of  opinion  that  we  in 
America  had  misapplied  the  principle  upon  which  the 
admiralty  jurisdiction  depended — that  in  England  the 
common  expression  was,  that  the  admiralty  jurisdiction 
extended  only  on  tide  waters,  and  as  far  as  the  tide  ebbed 
and  flowed;  and  this  was  a natural  and  reasonable  exposi- 
tion of  the  jurisdiction  in  England,  where  the  rivers  were 
very  short,  and  none  of  them  navigable  from  the  sea 
beyond  the  ebb  and  flow  of  the  tide — that  such  a narrow 
interpretation  was  wholly  inapplicable  to  the  great  rivers 
of  America;  that  the  true  principle,  upon  which  the 
admiralty  jurisdiction  in  America  depended,  was  to  ascer- 
tain how  far  the  river  was  navigable  from  the  sea;  and 
that  consequently,  in  America,  the  admiralty  jurisdiction 
extended  upon  our  great  rivers  not  only  as  far  as  the 
tide  ebbed  and  flowred  in  them,  but  as  far  as  they  were 
navigable  from  the  sea ; as,  for  example,  on  the  Mississippi 
and  its  branches,  up  to  the  falls  of  the  Ohio.  He  also 
thought  that  our  great  lakes  at  the  west  were  not  to  be 
considered  as  mere  inland  lakes,  but  were  to  be  deemed 
inland  navigable  seas,  and  as  such  were  subject,  or  ought 
to  be  subject,  to  the  same  jurisdiction.”  He  thus  fore- 
shadowed the  decision  made  in  1851  in  the  case  of  The 
Genesee  Chief,  by  which  the  decision  in  The  Thomas 
Jefferson  was  explicitly  overruled. 

Among  the  most  interesting  records  of  the  impression 
made  by  Chief  Justice  Marshall  upon  his  contemporaries 
are  entries  written  presently  after  his  death  (although 
not  published  until  much  later)  in  the  diary  of  John 
Quincy  Adams,  who  was  then  sixty-eight  years  old;  had 
been  a member  of  either  House  of  Congress;  charged  with 
many  a diplomatic  mission  abroad;  Secretary  of  State 
throughout  the  administration  of  President  Monroe,  and 
himself  President  of  the  United  States;  had  long  before 
been  an  active  member  of  the  bar  of  the  Supreme  Court, 


26 


and  had  declined  the  appointment  of  Associate  Justice, 
offered  him  by  President  Madison  before  he  appointed 
Mr.  Justice  Story;  and  who,  as  his  diary  shows,  was  not 
given  to  indiscriminate  or  excessive  laudation. 

In  that  diary,  under  date  of  July  10th,  1835,  Mr.  Adams 
wrote:  “John  Marshall,  Chief  Justice  of  the  United 
States,  died  at  Philadelphia  last  Monday,  the  4th  instant. 
He  was  one  of  the  most  eminent  men  that  this  country  has 
ever  produced.  He  has  held  this  appointment  thirty-five 
years.  It  was  the  last  act  of  my  father’s  administration, 
and  one  of  the  most  important  services  rendered  by  him 
to  his  country.  All  constitutional  governments  are  flexi- 
ble things;  and  as  the  Supreme  Judicial  Court  is  the 
tribunal  of  last  resort  for  the  construction  of  the  Consti- 
tution and  the  laws,  the  office  of  Chief  Justice  of  that 
court  is  a station  of  the  highest  trust,  of  the  deepest 
responsibility,  and  of  influence  far  more  extensive  than 
that  of  the  President  of  the  United  States.  John  Marshall 
was  a Federalist  of  the  Washington  school.  The  Asso- 
ciate Judges  from  the  time  of  his  appointment  have  gen- 
erally been  taken  from  the  Democratic  or  Jeffersonian 
party.”  “Marshall,  by  the  ascendency  of  his  genius,  by 
the  amenity  of  his  deportment,  and  by  the  imperturbable 
command  of  his  temper,  has  given  a permanent  and  sys- 
tematic character  to  the  decisions  of  the  court,  and  settled 
many  great  constitutional  questions  favorably  to  the 
continuance  of  the  Union.” 

In  the  same  diary,  again,  a month  later,  Mr.  Adams 
wrote:  “The  office  of  Chief  Justice  requires  a mind 
of  energy  sufficient  to  influence  generally  the  minds 
of  a majority  of  his  associates  ; to  accommodate  his  judg- 
ment to  theirs,  or  theirs  to  his  own  ; a judgment  also 
capable  of  abiding  the  test  of  time  and  of  giving  sat- 
isfaction to  the  public.  It  requires  a man  profoundly 
learned  in  the  law  of  nations,  in  the  commercial  and 
maritime  law,  in  the  civil  law,  in  the  common  law  of 
England,  and  in  the  general  statute  laws  of  the  several 


27 


States  of  the  Union.  With  all  these  powers  steadily 
exercised  during  a period  of  thirty -four  years,  Chief 
Justice  Marshall  has  settled  many  questions  of  constitu- 
tional law,  certainly  more  than  all  the  Presidents  of  the 
United  States  together.'’ 

The  late  Mr.  Justice  Bradley,  after  a distinguished 
service  of  nearly  twenty  years  on  the  bench  of  the  Supreme 
Court,  wrote  in  1889  of  Chief  Justice  Marshall  as  fol- 
lows: “It  is  needless  to  say  that  Marshall’s  reputation 
as  a great  constitutional  judge  is  peerless.  The  char- 
acter of  his  mind  and  his  previous  training  were  such 
as  to  enable  him  to  handle  the  momentous  questions, 
to  which  the  conflicting  views  upon  the  Constitution 
gave  rise,  with  the  soundest  logic,  the  greatest  breadth  of 
view,  and  the  most  far-seeing  statesmanship.  He  came 
to  the  bench  with  a reputation  already  established — the 
reputation  not  only  of  a great  lawyer,  but  of  an  eminent 
statesman  and  publicist.”  “ It  may  truly  be  said  that  the" 
Constitution  received  its  final  and  permanent  form  from 
the  judgments  rendered  by  the  Supreme  Court  during 
the  period  in  which  Marshall  was  at  its  head.  With  a 
few  modifications,  superinduced  by  the  somewhat  differ- 
ing views  on  two  or  three  points  of  his  great  successor, 
and  aside  from  the  new  questions  growing  out  of  the  late 
civil  war  and  the  recent  constitutional  amendments, 
the  decisions  made  since  Marshall’s  time  have  been  little 
more  than  the  application  of  the  principles  established 
by  him  and  his  venerated  associates.” 

“ The  American  Constitution  as  it  now  stands,”  says 
Mr.  James  Bryce,  in  his  book  on  The  American  Com- 
monwealth, “is  a far  more  complete  and  finished  instru- 
ment than  it  was  when  it  came  fire-new  from  the  hands 
of  the  Convention.  It  is  not  mere])7  their  work,  but  the 
work  of  the  judges,  and  most  of  all  of  one  man,  the  great 
Chief  Justice  Marshall.”  “ His  w7ork  of  building  up  and 
working  out  the  Constitution  was  accomplished  not  so 
much  by  the  decisions  he  gave,  as  by  the  judgments  in 


28 


which  he  expounded  the  principles  of  these  decisions, 
judgments  which  for  their  philosophical  breadth,  the 
luminous  exactness  of  their  reasoning,  and  the  fine 
political  sense  which  pervades  them,  have  never  been 
surpassed  and  rarely  equalled  by  the  most  famous  jurists 
of  modern  Europe  or  of  ancient  Rome.”  “ He  grasped 
with  extraordinary  force  and  clearness  the  cardinal  idea 
that  the  creation  of  a national  government  implies  the 
grant  of  all  such  subsidiary  powers  as  are  requisite  to 
the  effectuation  of  its  main  powers  and  purposes;  but 
he  developed  and  applied  this  idea  with  so  much  pru- 
dence and  sobriety,  never  treading  on  purely  political 
ground,  never  indulging  the  temptation  to  theorize,  but 
content  to  follow  out  as  a lawyer  the  consequences  of  legal 
principles,  that  the  Constitution  seemed  not  so  much  to 
rise  under  his  hands  to  its  full  stature,  as  to  be  gradually 
unveiled  by  him  till  it  stood  revealed  in  the  harmonious 
perfection  of  the  form  which  its  framers  had  designed.” 

The  very  greatness  and  completeness  of  the  work  of 
Chief  Justice  Marshall  tends  to  prevent  our  appreciating 
how  great  it  was. 

He  was  a great  statesman,  as  well  as  a great  lawyer, 
and  yet  constantly  observed  the  distinction  between  law, 
as  judicially  administered,  and  statesmanship. 

The  Constitution  of  the  United  States  created  a nation 
upon  the  foundation  of  a written  constitution ; and,  as 
expounded  by  Marshall,  transferred  in  large  degree  the 
determination  of  the  constitutionality  of  the  acts  of  the 
legislature  or  the  executive  from  the  political  to  the  judi- 
cial department. 

Marshall  grew  up  with  the  Constitution.  He  served  in 
the  legislature  of  Virginia  before  and  after  its  adoption, 
and  in  the  convention  of  Virginia  by  which  it  was  ratified. 
He  took  part  in  its  administration,  abroad  and  at  home, 
in  a foreign  mission,  in  the  House  of  Representatives, 
and  in  the  Department  of  State,  before  he  became  the 
head  of  the  judiciary,  within  a quarter  of  a century  after 


29 


the  Declaration  of  Independence,  and  less  than  twelve 
years  after  the  Constitution  was  established. 

During  the  thirty-four  years  of  his  Chief  Justiceship  he 
expounded  and  applied  the  Constitution,  in  almost  every 
aspect,  with  unexampled  sagacity,  courage  and  caution. 

He  had  an  intuitive  perception  of  the  real  issue  of 
every  case,  however  complicated,  and  of  the  way  in  which 
it  should  be  decided. 

His  manner  of  reasoning  was  peculiarly  judicial.  It 
was  simple,  direct,  clear,  strong,  earnest,  logical,  compre- 
hensive, demonstrative,  starting  from  admitted  premises, 
frankly  meeting  every  difficulty,  presenting  the  case  in 
every  possible  aspect,  and  leading  to  philosophical  and 
profound^  wise  conclusions,  sound  in  theory  and  practi- 
cal in  result.  He  recognized  that,  next  to  a right  de- 
cision, it  was  important  that  reasons  for  the  decision 
should  be  fully  stated  so  as  to  satisfy  the  parties  and  the 
public.  And  it  may  be  said  of  him,  as  Charles  Butler, 
in  his  Reminiscences,  says  of  Lord  Camden,  that  he 
sometimes  “rose  to  sublime  strains  of  eloquence:  but 
their  sublimity  was  altogether  in  the  sentiment;  the  dic- 
tion retained  its  simplicity,  and  this  increased  the  effect.” 

It  was  in  the  comparatively  untrodden  domain  of  con- 
stitutional law,  in  bringing  acts  of  the  legislature  and  of 
the  executive  to  the  test  of  the  fundamental  law  of  the 
Constitution,  that  his  judicial  capacity  was  preeminently 
shown.  Deciding  upon  legal  grounds,  and  only  so  much 
as  was  necessary  for  the  disposition  of  the  particular  case, 
he  constantly  kept  in  mind  the  whole  scheme  of  the  Con- 
stitution. And  he  answered  all  possible  objections  with 
such  fulness  and  such  power  as  to  make  his  conclusions 
appear  natural  and  inevitable. 

The  principles  affirmed  by  his  judgments  have  become 
axioms  of  constitutional  law.  And  it  is  difficult  to  over- 
estimate the  effect  which  those  judgments  have  had  in 
quieting  controversies  on  constitutional  questions,  and 
in  creating  or  confirming  a sentiment  of  allegiance  to  the 


30 


Constitution,  as  loyal  and  devoted  as  ever  was  given  to 
any  sovereign. 

You  will,  I hope,  forgive  me  one  personal  anecdote. 
While  I had  the  honor  to  be  Chief  Justice  of  Massachu- 
setts, I was  a guest  of  a Boston  merchant  at  a dinner  party 
of  gentlemen,  which  included  Mr.  Bartlett,  then  the  fore- 
most lawyer  of  Massachusetts,  and  one  of  the  leaders  at 
the  bar  of  the  Supreme  Court  of  the  United  States.  In 
the  course  of  the  dinner,  the  host,  turning  to  me,  asked, 
“How  great  a judge  was  this  Judge  Marshall,  of  whom 
you  lawyers  are  always  talking?”  I answered,  “The 
greatest  judge  in  the  language.”  Mr.  Bartlett  spoke  up, 
“Is  not  that  rather  strong,  Chief  Justice?”  I rejoined, 
“ Mr.  Bartlett,  what  do  you  say?”  After  a moment’s  pause, 
and  speaking  with  characteristic  deliberation  and  empha- 
sis, he  replied:  “ I do  not  know  but  you  are  right.” 

A service  of  nearly  twenty  years  on  the  bench  of  the 
Supreme  Court  has  confirmed  me  in  this  estimate.  We 
must  remember  that,  as  has  been  well  said  b}7  an  eminent 
advocate  of  our  own  time,  Mr.  Edward  J.  Phelps,  in 
speaking  of  Chief  Justice  Marshall:  “The  test  of  his- 
torical greatness — the  sort  of  greatness  that  becomes  im- 
portant in  future  history — is  not  great  ability  merely. 
It  is  great  ability,  combined  with  great  opportunity, 
greatly  employed.”  None  other  of  the  great  judges  of 
England  or  of  America  ever  had  the  great  opportunity 
that  fell  to  the  lot  of  Marshall. 

John  Marshall,  during  his  term  of  office  as  Chief  Justice, 
undertook  no  other  public  employment,  except  that,  at 
the  beginning  of  that  term,  and  at  the  particular  request 
of  President  John  Adams,  he  continued  to  hold  the  office 
of  Secretary  of  State  for  the  last  month  of  his  adminis- 
tration ; and  that,  at  seventy-four  years’of  age,  and  after 
having  been  Chief  Justice  twenty -eight  years,  he  was 
persuaded  to  serve  as  a member  of  the  Virginia  conven- 
tion of  1829-30  to  revise  the  constitution  of  the  State. 


31 


At  the  time  of  becoming  a member  of  that  convention, 
he  wrote  to  Mr.  Justice  Story  an  amusingly  apologetic 
letter,  dated  Richmond,  June  11th,  1829,  in  which  he 
said:  “ I am  almost  ashamed  of  my  weakness  and  irreso- 
lution, when  I tell  }Tou  that  I am  a member  of  our  con- 
vention. I was  in  earnest  when  I told  you  that  I would 
not  come  into  that  body,  and  really  believed  that  I should 
adhere  to  that  determination ; but  I have  acted  like  a girl 
addressed  by  a gentleman  she  does  not  positively  dislike, 
but  is  unwilling  to  marry.  She  is  sure  to  yield  to  the 
advice  and  persuasion  of  her  friends.”  “ I assure  you  I 
regret  being  a member,  and  could  I have  obeyed  the  dic- 
tates of  my  own  judgment  I should  not  have  been  one. 
I am  conscious  that  I cannot  perform  a part  I should  wish 
to  take  in  a popular  assembly ; but  I am  like  Moliere’s 
Medecin  Malgre  Lui.” 

Mr.  Grigsby  tells  us  that  “ he  spoke  but  seldom  in  the 
convention,  and  always  with  deliberation,”  and  that  “ an 
intense  earnestness  was  the  leading  trait  of  his  manner.” 
Some  remarks  of  his  on  the  judicial  tenure  may  fitly  be 
quoted,  without  comment. 

Strenuously  upholding,  as  essential  to  the  independ- 
ence of  the  judiciary,  the  tenure  of  office  during  good 
behavior,  he  said:  “I  have  grown  old  in  the  opinion, 
that  there  is  nothing  more  dear  to  Virginia,  or  ought  to 
be  dearer  to  her  statesmen,  and  that  the  best  interests  of 
our  country  are  secured  by  it.  Advert,  Sir,  to  the  duties 
of  a judge.  He  has  to  pass  between  the  government  and 
the  man  whom  that  government  is  prosecuting : between 
the  most  powerful  individual  in  the  community,  and  the 
poorest  and  most  unpopular.”  “Is  it  not,  to  the  last 
degree,  important  that  he  should  be  rendered  perfectly 
and  completely  independent,  with  nothing  to  influence  or 
control  him  but  God  and  his  conscience?  You  do  not 
allow  a man  to  perform  the  duties  of  a juryman  or  a judge, 
if  he  has  one  dollar  of  interest  in  the  matter  to  be  decided ; 
and  will  you  allow  a judge  to  give  a decision  when  his 


32 


office  may  depend  upon  it?  When  his  decision  may 
offend  a powerful  and  influential  man?  ” “And  will  you 
make  me  believe  that  if  the  manner  of  his  decision  may 
affect  the  tenure  of  that  office,  the  man  himself  will  not 
be  affected  by  that  consideration?”  “I  have  always 
thought,  from  my  earliest  youth  till  now,  that  the  greatest 
scourge  an  angry  Heaven  ever  inflicted  upon  an  ungrate- 
ful and  a sinning  people  was  an  ignorant,  a corrupt,  or 
a dependent  judiciary.” 

The  question  of  the  weight,  as  a precedent,  of  the  act 
of  Congress  of  1802,  abolishing  the  circuit  judgeships 
created  by  Congress  in  1801,  having  been  discussed  by 
other  members  of  the  convention,  and  Chief  Justice  Mar- 
shall’s opinion  having  been  requested,  he  said,  “that  it 
was  with  great,  very  great  repugnance,  that  he  rose  to  utter 
a syllable  upon  the  subject.  His  reluctance  to  do  so  was 
very  great  indeed  ; and  he  had,  throughout  the  previous 
debates  on  this  subject,  most  carefully  avoided  expressing 
any  opinion  whatever  upon  what  had  been  called  a con- 
struction of  the  Constitution  of  the  United  States  by  the 
act  of  Congress  of  1802.  He  should  now,  as  far  as  possi- 
ble, continue  to  avoid  expressing  any  opinion  on  that  act 
of  Congress.  There  was  something  in  his  situation,  which 
ought  to  induce  him  to  avoid  doing  so.  He  would  go  no 
farther  than  to  say,  that  he  did  not  conceive  the  Consti- 
tution to  have  been  at  all  definitively  expounded  by  a 
single  act  of  Congress.  He  should  not  meddle  with  the 
question,  whether  a course  of  successive  legislation  should 
or  should  not  be  held  as  a final  exposition  of  it;  but  he 
would  say  this — that  a single  act  of  Congress,  unconnected 
with  any  other  act  by  the  other  departments  of  the  Fed- 
eral Government,  and  especially  of  that  department  more 
especially  entrusted  with  the  construction  of  the  Consti- 
tution in  a great  degree,  when  there  was  no  union  of  de- 
partments, but  the  legislative  department  alone  had  acted, 
and  acted  but  once,  even  admitting  that  act  not  to  have 
passed  in  times  of  high  political  and  party  excitement, 
could  never  be  admitted  as  final  and  conclusive.” 


33 


A discussion  of  the  merits  of  his  Life  of  Washington 
would  be  out  of  place  on  this  occasion.  But  I may  men- 
tion having  been  favored  with  a sight  of  his  letter  of 
November  25th,  1833,  accepting  the  Presidency  of  the 
AVashington  National  Monument  Society,  in  which  he 
said:  “You  are  right  in  supposing  that  the  most  ardent 
wish  of  my  heart  is  to  see  some  lasting  testimonial  of  the 
grateful  affection  of  his  country  erected  to  the  memory  of 
her  first  citizen.  I have  always  wished  it,  and  have 
always  thought  that  the  metropolis  of  the  Union  was  the 
first  place  for  this  national  monument.” 

His  letter  to  Delaplaine,  containing  the  autobiography 
already  quoted,  contains  another  passage  too  character- 
istic to  he  omitted:  “I  received  also  a letter  from  you, 
requesting  some  expression  of  my  sentiments  respecting 
your  repository,  and  indicating  an  intention  to  publish  in 
some  conspicuous  manner  the  certificates  which  might  be 
given  by  Air.  Wirt  and  myself.  I have  been  ever  particu- 
larly  unwilling  to  obtain  this  kind  of  distinction,  and 
must  insist  on  not  receiving  it  now.  I have,  however,  no 
difficulty  in  saying,  that  your  work  is  one  in  which  the 
nation  ought  to  feel  an  interest,  and  I sincerely  wish  it 
may  be  encouraged,  and  that,  you  may  receive  ample  com- 
pensation for  your  labor  and  expense.  The  execution  is, 
I think,  in  many  respects  praiseworthy.  The  portraits, 
an  object  of  considerable  interest,  are,  so  far  as  my 
acquaintance  extends,  good  likenesses ; and  the  printing 
is  neatly  executed  with  an  excellent  type.  In  the  charac- 
ters there  is  of  course  some  variety.  Some  of  them  are 
drawn  with  great  spirit  and  justice;  some  are,  perhaps, 
rather  exaggerated.  There  is  much  difficulty  in  giving 
living  characters,  at  any  rate  until  they  shall  have  with- 
drawn from  the  public  view.”  And  Air.  AATrt,  then 
Attorney  General,  wrote  a similar  letter  November  5th, 
ISIS,  to  Delaplaine. 

Alarshall  was,  like  Lord  Camden  and  other  eminent 
judges,  a great  reader  of  novels.  On  November  26th, 
3 


34 


1826,  he  wrote  to  Mr.  Justice  Story  that  he  had  just  fin- 
ished reading  Miss  Austen’s  novels,  and  was  much  pleased 
with  them,  saying:  “Her  flights  are  not  lofty,  she  does 
not  soar  on  eagle’s  wings,  but  she  is  pleasing,  interesting, 
equable  and  yet  amusing.” 

To  his  latest  years,  he  retained  his  love  of  country  life, 
and  his  habits  of  exercise  in  the  open  air.  He  continued 
to  own  the  family  place  in  Fauquier  County,  where  he 
had  passed  his  boyhood,  and  usually  visited  it  in  the 
summer.  And  he  had  another  farm  three  or  four  miles 
from  Richmond,  and  often  walked  out  or  in. 

Mr.  Binney,  in  his  sketches  of  the  Old  Bar  of  Phila- 
delphia, incidentally  mentions:  “After  doing  my  best, 
one  morning,  to  overtake  Chief  Justice  Marshall  in  his 
quick  march  to  the  Capitol,  when  he  was  nearer  to  eighty 
than  to  seventy,  I asked  him  to  what  cause  in  particular 
he  attributed  that  strong  and  quick  step ; and  he  replied 
that  he  thought  it  was  most  due  to  his  commission  in  the 
army  of  the  Revolution,  in  which  he  had  been  a regular 
foot  practitioner  for  nearly  six  years.” 

You  would  not  forgive  me,  were  I to  omit  to  mention 
the  Quoit  Club,  or  Barbecue  Club,  which  for  many 
years  used  to  meet  on  Saturdays  at  Buchanan’s  Spring  in 
a grove  on  the  outskirts  of  Richmond.  The  city  has 
spread  over  the  place  of  meeting,  the  spring  has  been 
walled  in  and  the  grove  cut  down,  and  the  memories  of 
the  Club  are  passing  into  legend. 

According  to  an  account  preserved  in  an  article  on 
Chief  Justice  Marshall  in  the  number  for  February,  1836, 
of  the  Southern  Literary  Messenger,  (which  I believe  has 
always  been  considered  as  faithfully  recording  the  senti- 
ments and  the  traditions  of  Virginia,)  the  Quoit  Club  was 
coeval  with  the  Constitution  of  the  United  States,  having 
been  organized  in  1788  by  thirty  gentlemen,  of  whom 
Marshall  was  one;  and  it  grew  out  of  informal  fortnightly 
meetings  of  some  Scotch  merchants  to  play  at  quoits. 


35 


"Who  can  doubt  that,  if  those  Scotchmen  had  only  intro- 
duced their  national  game  of  golf,  the  Chief  Justice  would 
have  become  a master  of  that  game? 

There  are  several  picturesque  descriptions  of  the  part 
he  took  at  the  meetings  of  the  Quoit  Club.  It  is  enough 
to  quote  one,  perhaps  less  known  than  the  others,  in 
which  the  artist,  Chester  Harding,  visiting  Richmond 
during  the  session  of  the  State  convention  of  1829-30, 
when  the  Chief  Justice  was  nearly  seventy-five  years  old, 
and  the  last  survivor  of  the  founders  of  the  Club,  tells  us: 
“I  again  met  Judge  Marshall  in  Richmond,  whither  I 
went  during  the  sitting  of  the  convention  for  amending  the 
constitution.  He  was  a leading  member  of  a quoit  club, 
which  I was  invited  to  attend.  The  battle-ground  was 
about  a mile  from  the  city,  in  a beautiful  grove.  I went 
early,  with  a friend,  just  as  the  party  were  beginning  to 
arrive.  J watched  for  the  coming  of  the  old  chief.  He 
soon  approached  with  his  coat  on  his  arm,  and  his  hat  in 
his  hand,  which  he  was  using  as  a fan.  He  walked 
directly  up  to  a large  bowl  of  mint-julep,  which  had  been 
prepared,  and  drank  off  a tumbler  full  of  the  liquid, 
smacked  his  lips,  and  then  turned  to  the  company  with  a 
cheerful  ‘How  are  you,  gentlemen?’  He  was  looked 
upon  as  the  best  pitcher  of  the  party,  and  could  throw 
heavier  quoits  than  any  other  member  of  the  club.  The 
game  began  with  great  animation.  There  were  several 
ties;  and,  before  long,  I saw  the  great  Chief  Justice  of  the 
Supreme  Court  of  the  United  States  down  on  his  knees, 
measuring  the  contested  distance  with  a straw,  with  as 
much  earnestness  as  if  it  had  been  a point  of  law ; and 
if  he  proved  to  be  in  the  right,  the  woods  would  ring 
with  his  triumphant  shout.” 

In  the  summer  and  autumn  of  1831,  the  Chief  Justice 
had  a severe  attack  of  stone,  which  was  cured  by  lithot- 
omy, performed  by  the  eminent  surgeon,  Dr.  Physick, 
of  Philadelphia,  in  October,  1831.  Another  surgeon, 
who  assisted  at  the  operation,  tells  us  that  his  recovery 


36 


was  in  a great  degree  owing  to  his  extraordinary  self- 
possession,  and  to  the  calm  and  philosophical  views 
which  he  took  of  his  case,  and  of  the  various  circum- 
stances attending  it.  Just  before  the  operation,  he  wrote 
to  Mr.  Justice  Story:  “I  am  most  earnestly  attached  to 
the  character  of  the  department,  and  to  the  wishes  and 
convenience  of  those  with  whom  it  has  been  my  pride 
and  my  happiness  to  be  associated  for  so  many  years. 
I cannot  be  insensible  to  the  gloom  which  lowers  over 
us.  I have  a repugnance  to  abandoning  you  under 
such  circumstances,  which  is  almost  invincible.  But  the 
solemn  convictions  of  my  judgment,  sustained  by  some 
pride  of  character,  admonish  me  not  to  hazard  the  dis- 
grace of  continuing  in  office  a mere  inefficient  pageant.” 
He  concluded  by  saying  that  he  had  determined  to 
postpone  until  the  next  term  the  question  whether  he 
should  resign  his  office.  After  the  operation,  he  wrote: 
“ Thank  Heaven,  I have  reason  to  hope  that  I am  relieved. 
I am,  however,  under  the  very  disagreeable  necessity  of 
taking  medicine  continually  to  prevent  new  formations. 
I must  submit,  too,  to  a severe  and  most  unsociable 
regimen.  Such  are  the  privations  of  age.”  He  contin- 
ued to  perform  the  duties  of  his  office,  with  undimin- 
ished powers  of  mind,  for  nearly  four  years  more,  and 
ultimately  died,  in  his  eightieth  year,  of  a disease  of  a 
wholly  different  character,  an  enlarged  condition  of  the 
liver. 

There  are  many  testimonies  to  his  great  modesty,  self- 
effacement  and  true  humility,  in  any  company,  whether 
of  friends  or  of  strangers.  Let  me  quote  but  one,  recently 
made  known  to  me  by  the  kindness  of  the  President  of 
your  Supreme  Court  of  Appeals,  (a  kinsman  of  Chief 
Justice  Marshall,)  and  which,  with  his  permission,  is 
given  in  his  own  words:  “I  have  an  aunt  in  Fau- 
quier County,  Miss  Lucy  Chilton,  now  in  her  ninety-first 
year.  I asked  her  on  one  occasion  if  she  had  known 
Judge  Marshall.  She  replied  that  she  had  spent  weeks 


37 


at  a time  in  the  same  house  with  him.  I then  asked  her 
what  trait  or  characteristic  most  impressed  her.  She  re- 
plied without  hesitation  : ‘ His  humility.  He  seemed  to 
think  himself  the  least  considered  person  in  whatever 
company  he  chanced  to  be.’  ” This  quality  in  him  may 
help  us  to  understand  the  saying,  that  the  great  lawgiver 
and  judge  of  the  Hebrews — who,  we  are  told,  “was  learned 
in  all  the  wisdom  of  the  Egyptians,  and  was  mighty  in 
words  and  in  deeds  ” — was  “ very  meek,  above  all  men 
which  were  upon  the  face  of  the  earth.” 

Chief  Justice  Marshall  was  a steadfast  believer  in  the 
truth  of  Christianity,  as  revealed  in  the  Bible.  He 
was  brought  up  in  the  Episcopal  Church ; and  Bishop 
Meade,  who  knew  him  well,  tells  us  that  he  was  a con- 
stant and  reverent  worshipper  in  that  church,  and 
contributed  liberally  to  its  support,  although  he  never 
became  a communicant.  All  else  that  we  know  of  his 
personal  religion  is  derived  from  the  statements  (as 
handed  down  by  the  good  bishop)  of  a daughter  of  the 
Chief  Justice,  who  was  much  with  him  during  the  last 
months  of  his  life.  She  said  that  her  father  told  her  he 
never  went  to  bed  without  concluding  his  prayer  by 
repeating  the  Lord’s  Prayer  and  the  verse  beginning, 
“Now  I lay  me  down  to  sleep,”  which  his  mother  had 
taught  him  when  he  was  a child;  and  that  the  reason 
why  he  had  never  been  a communicant  was  that  it  was 
but  recently  that  he  had  become  fully  convinced  of  the 
divinity  of  Christ,  and  he  then  “ determined  to  apply  for 
admission  to  the  communion  of  our  church — objected  to 
commune  in  private,  because  he  thought  it  his  duty  to 
make  a public  confession  of  the  Saviour — and,  while 
waiting  for  improved  health  to  enable  him  to  go  to  the 
church  for  that  purpose,  he  grew  worse  and  died,  without 
ever  communing.” 

His  private  character  cannot  be  more  felicitously  or 
more  feelingly  summed  up  than  in  the  resolutions  drawn 
up  by  Mr.  Leigh,  and  unanimously  adopted  by  the  Bar  of 


38 


this  Circuit,  soon  after  the  death  of  the  Chief  Justice: 
“His  private  life  was  worthy  of  the  exalted  character  he 
sustained  in  public  station.  The  unaffected  simplicity  of 
his  manners  ; the  spotless  purity  of  his  morals;  his  social, 
gentle,  cheerful  disposition;  his  habitual  self-denial,  and 
boundless  generosity  towards  others;  the  strength  and 
constancy  of  his  attachments;  his  kindness  to  his  friends 
and  neighbors ; his  exemplary  conduct  in  the  relations 
of  son,  brother,  husband,  father;  his  numerous  charities; 
his  benevolence  towards  all  men,  and  his  ever  active 
beneficence ; these  amiable  qualities  shone  so  conspicu- 
ously in  him,  throughout  his  life,  that,  highly  as  he  was 
respected,  he  had  the  rare  happiness  to  he  yet  more 
beloved.” 

Let  me  add  a few  words  from  the  address  of  Mr.  Wil- 
liam Maxwell  before  the  Virginia  Historical  and  Philo- 
sophical Society  on  March  2d,  1836,  preserved  in  the  South- 
ern Literary  Messenger:  “He  came  about  amongst  us, 
like  a father  amongst  his  children,  like  a patriarch 
amongst  his  people — like  that  patriarch  whom  the  sacred 
Scriptures  have  canonized  for  our  admiration — ‘when 
the  eye  saw  him,  it  blessed  him;  when  the  ear  heard 
him,  it  gave  witness  to  him;  and  after  his  words  men 
spake  not  again.’” 

The  earliest  and  most  lifelike  description  that  we  have 
of  his  face  and  figure  is  one  given  by  the  kinsman  who  was 
present  on  the  occasion,  already  mentioned,  of  his  taking 
command  of  a militia  company  in  1775,  when  not  quite 
twenty  years  of  age:  “He  was  about  six  feet  high, 
straight  and  rather  slender;  of  dark  complexion,  showing 
little  if  any  rosy  red,  yet  good  health;  the  outline  of  the 
face  nearly  a circle,  and,  within  that,  eyes  dark  to  black- 
ness, strong  and  penetrating,  beaming  with  intelligence 
and  good  nature;  an  upright  forehead,  rather  low,  was 
terminated  in  a horizontal  line  by  a mass  of  raven-black 
hair  of  unusual  thickness  and  strength ; the  features  of  the 
face  were  in  harmony  with  this  outline,  and  the  temples 


39 


fully  developed;  the  result  of  this  combination  was  inter- 
esting and  very  agreeable.  The  body  and  limbs  indicated 
agility  rather  than  strength,  in  which,  however,  he  was 
by  no  means  deficient.”  A few  words  more  may  be 
quoted,  completing  the  picture:  “He  wore  a purple  or 
pale-blue  hunting-shirt,  and  trousers  of  the  same  material 
fringed  with  white.  A round  black  hat,  mounted  with 
the  bucks-tail  for  a cockade,  crowned  the  figure  and  the 
man.” 

“This  is  a portrait  to  which,”  adds  Mr.  Binney,  “in 
everything  but  the  symbols  of  the  youthful  soldier,  and 
one  or  two  of  those  lineaments  which  the  hand  of  time, 
however  gentle,  changes  and  perhaps  improves,  he  never 
lost  his  resemblance.  All  who  knew  him  well  will  recog- 
nize its  truth  to  nature.” 

Of  all  the  portraits  by  various  artists,  that  which 
best  accords  with  the  above  description,  especially  in  the 
“eyes  dark  to  blackness, strong  and  penetrating, beaming 
with  intelligence  and  good  nature,”  is  one  by  Jarvis, 
(perhaps  the  best  American  portrait  painter  of  his  time, 
next  to  Stuart,)  which  I have  had  the  good  fortune  to 
own  for  thirty  years,  and  of  which,  before  I bought  it,  Mr. 
Middleton,  then  the  clerk  of  the  Supreme  Court,  who  had 
been  deputy  clerk  for  eight  years  under  Chief  Justice 
Marshall,  wrote  me:  “It  is  an  admirable  likeness;  better 
than  the  one  I have,  which  has  always  been  consid- 
ered one  of  the  best.”  This  portrait  was  taken  while 
his  hair  was  still  black,  or  nearly  so ; and,  as  shown  by 
the  judicial  robe,  and  by  the  curtain  behind  and  above 
the  head,  was  intended  to  represent  him  as  he  sat  in 
court. 

The  most  important  of  the  later  portraits  are  those 
painted  by  Harding  in  1828-30,  and  by  Inman  in  1831, 
with  a graver  expression  of  countenance,  with  the  hair 
quite  gray,  and  with  deep  lines  in  the  face. 

Harding’s  portraits  were  evidently  thought  well  of,  by 
the  subject,  as  well  as  by  the  artist.  One  of  them,  after- 


40 


wards  bequeathed  b)r  Mr.  Justice  Story  to  Harvard  Col- 
lege, was  sent  to  him  by  the  Chief  Justice  in  March, 
1828,  with  a letter  saying,  “I  beg  you  to  accept  my  por- 
trait, for  which  I sat  in  Washington  to  Mr.  Harding,  to 
be  preserved  when  I shall  sleep  with  my  fathers,  as  a tes- 
timonial of  sincere  and  affectionate  friendship;”  and  in 
the  same  letter  he  gave  directions  for  paying  Harding 
“for  the  head  and  shoulders  I have  bespoke  for  myself.” 
Harding’s  principal  portrait  of  Marshall  was  painted  in 
1830  for  the  Boston  Athenaeum,  in  whose  possession  it  still 
is ; it  has  the  advantage  of  being  a full  length,  showing 
that  in  his  seventy-fifth  year  he  retained  the  erect  and 
slender  figure  of  his  youth ; and  the  artist  wrote  of  it  in 
His  autobiography:  “ I consider  it  a good  picture.  I had 
great  pleasure  in  painting  the  whole  of  such  a man.” 

Inman’s  careful  portrait,  in  the  possession  of  the  Phila- 
delphia Law  Association,  has  often  been  engraved,  and  is 
perhaps  the  best  known  of  all. 

The  crayon  portrait  in  profile,  drawn  by  St.  Memim 
in  1S08,  which  has  always  remained  in  the  family 
of  the  Chief  Justice,  and  been  considered  by  them  an 
excellent  likeness,  and  is  now  owned  by  a descendant 
in  Baltimore;  the  bust  by  Frazee,  bequeathed  by  Mr. 
Justice  Story  to  Harvard  College,  and  familiarly  known 
by  numerous  casts;  and  that  executed  by  Powers,  by 
order  of  Congress,  soon  after  the  Chief  Justice’s  death,  for 
the  Supreme  Court  Room — all  show  that,  while  his  hair 
grew  rather  low  on  the  forehead,  his  head  was  high  and 
well  shaped,  and  that,  as  was  then  not  unusual,  he  wore 
his  hair  in  a queue. 

His  dress,  as  shown  in  the  full  length  portrait  by  Hard- 
ing, and  as  described  by  his  contemporaries,  was  a simple 
and  appropriate,  but  by  no  means  fashionable,  suit  of 
black,  with  knee  breeches,  long  stockings,  and  low  shoes 
with  buckles. 

You  may  think,  my  friends,  that  I have  been  led  on  to 
spend  too  much  time  in  endeavoring  to  bring  before  you 


41 


the  bodily  semblance  of  the  great  Chief  Justice.  Yet  you 
must  admit,  as  he  did  in  his  letter  to  Delaplaine,  that 
portraits  of  eminent  men  are  “an  object  of  considerable 
interest.” 

But,  after  all,  it  is  not  the  personal  aspect  of  a great  man, 
it  is  his  intellect  and  his  character,  that  have  a lasting 
influence  on  mankind.  JJt  vultus  hominum,  ita  simulacra 
vultus  imbecilla  ac  mortalia  sunt.  Forma  mentis  seterna  ; 
quam  tenere  et  exprimere,  non  per  alienam  materiam  et  artem, 
sed  tuis  ipse  moribus  possis. 

Brethren  of  the  Bar  of  the  Old  Dominion;  Fellow- 
citizens  of  the  United  States: 

To  whatsoever  professional  duty  or  public  office  we  may 
any  of  us  be  called,  we  can  find,  in  the  long  line  of  emi- 
nent judges  with  whom  Almighty  Providence  has  blessed 
our  race,  no  higher  inspiration,  no  surer  guide,  than  in 
the  example  and  in  the  teachings  of  John  Marshall. 


SUPREME  COURT  DECISIONS 
REFERRED  TO. 

Bank  of  United  States  v.  Deveaux  (1809)  5 Cranch,  61. 
Bollman  & Swartwout,  ex  parte  (1807)  4 Cranch,  75. 

Boyle  v.  Zacharie  ( 1832 ) 6 Peters,  348,  635. 

Brown  v.  Maryland  (1827)  12  Wheaton,  419. 

Chisholm  v.  Georgia  (1793)  2 Dallas,  419. 

Cohens  v.  Virginia  (1821)  6 Wheaton,  264. 

Dartmouth  College  v.  Woodward  (1819)  4 Wheaton,  518. 
Elmendorf  v.  Taylor  (1825)  10  Wheaton,  152. 

The  Exchange  (1812)  7 Cranch,  116. 

Fletcher  v.  Peck  (1810)  6 Cranch,  87. 

The  Genesee  Chief  (1851)  12  Howard,  443. 

Gibbons  v.  Ogden  (1824)  9 Wheaton,  1. 

Hans  v.  Louisiana  (1890)  134  United  States,  1. 
Hollingsworths.  Virginia  (1798)  3 Dallas,  378. 

Hope  Insurance  Company  v.  Boardman  (1809  ) 5 Cranch,  57. 
Hylton  v.  United  States  (1796)  3 Dallas,  171. 

Louisville  Railroad  Company  v.  Letson  (1844  ) 2 Howard,  497. 
McCulloch  v.  Maryland  (1819)  4 Wheaton,  316. 

Marbury  v.  Madison  (1803)  1 Cranch,  137. 

Martin  v.  Hunter’s  Lessee  (1816)  1 Wheaton,  304. 

Ogden  v.  Saunders  (1827)  12  Wheaton,  213. 

Osborn  v.  Bank  of  United  States  (1824)  9 Wheaton,  738. 
Stuart  v.  Laird  ( 1803 ) 1 Cranch,  299. 

Sturges  v.  Crowninshield  (1819)  4 Wheaton,  122. 

The  Thomas  Jefferson  (1825)  10  Wheaton,  428. 

United  States  v.  Peters  (1809)  5 Cranch,  115. 

v.  Wiltberger  (1820)  5 Wheaton,  76. 

Ware  v.  Hylton  (1796)  3 Dallas,  199. 


AUTHORITIES  CONSULTED,  OTHER  THAN 
SUPREME  COURT  DECISIONS. 

Adams,  John.  Works,  vol.  is.  Boston,  1854. 

Adams,  John  Quincy.  Memoirs,  vols.  viii,  is.  Philadelphia,  1876. 
Binney,  Horace.  Eulogy  on  Marshall.  Philadelphia,  1835. 

Old  Bar  of  Philadelphia,  p.  83.  Philadelphia,  1859. 

Bradley,  Joseph  P.  St.  Memim’s  Portrait  of  Marshall.  Century 
Magazine  of  September,  1889.  New  York,  1889. 

Bryce,  James.  The  American  Commonwealth.  London,  1888. 

Burr,  Aaron.  Trial.  Robertson’s  Report ; Philadelphia,  1808. 
Butler,  Charles.  Reminiscences,  vol.  i,  (4th  ed. ) p.  133.  London, 
1824. 

Carson,  Hampton  L.  The  Supreme  Court  of  the  United  States. 
(2d  ed. ) Philadelphia,  1892. 

Cooley,  Thomas  M.  The  Federal  Supreme  Court.  Lecture  at  Uni- 
versity of  Michigan  in  1889.  New  York,  1890. 

Flanders,  Henry.  Lives  of  the  Chief  Justices.  Philadelphia,  1881. 
Gibbs,  George.  Administrations  of  Washington  and  John  Adams, 
vol.  ii,  p.  314.  New  York,  1846. 

Grigsby,  Hugh  B.  Discourse  on  Virginia  Convention  of  1829-30. 
Richmond,  1853. 

Harding,  Chester.  Autobiographical  Sketch.  Cambridge,  1866. 
Boston,  1890. 

Henry,  Patrick.  Life  by  William  Wirt  Henry.  New  York,  1891. 
Hitchcock,  Henry.  Constitutional  Development  of  the  United  States 
as  influenced  by  Marshall.  Lecture  at  University  of  Michigan 
in  1889.  New  York,  1890. 

Hopkinson,  Joseph.  Memoir  of  Marshall.  Brockenbrough’s  Re- 
ports of  Marshall’s  Decisions  in  Circuit  Court,  vol.  i,  p.  ix. 
Philadelphia,  1837. 

Jay,  John.  Life  by  William  Jay.  New  York,  1833. 

Life  by  George  Pellew.  Boston,  1890. 

Law  Reports,  Probate  Division,  vol.  v,  pp.  197,  208.  London,  1880. 
Magruder,  Allan  B.  Life  of  Marshall.  Boston,  1885. 


46 


Marshall,  John.  Letters  to  John  Adams.  In  possession  of  Adams 
Family  at  Quincy.  MSS. 

Letters  to  William  Cushing.  In  possession  of 

General  Charles  J.  Paine  of  Boston.  MSS. 

Letter  to  James  Delaplaine.  Columbus,  Ohio; 

published  by  J.  H.  Riley  & Co.,  1848. 

Letters  to  Joseph  Story.  Massachusetts  Historical 

Society  Proceedings.  November,  1900. 

Life  of  Washington.  Philadelphia,  1804-7 ; (2d  ed. ) 

Philadelphia,  1833. 

Speech  in  Congress  on  Case  of  Jonathan  Robbins. 

Philadelphia,  1800.  Wheaton’s  Reports  of  Cases  in  Supreme 
Court,  vol.  v,  appendix;  New  York,  1820. 

Meade,  William.  Old  Churches  and  Families  of  Virginia,  vol.  i, 
p.  30;  vol.  ii,  pp.  216-224.  Philadelphia,  1872. 

New  York  Review.  Article  on  Marshall,  vol.  iii,  p.  328.  New  York, 
1838. 

Phelps,  Edward  J.  Address  on  Marshall.  Philadelphia,  1879.  Ameri- 
can Bar  Association  Reports,  vol.  ii. 

Physick,  Philip  S.  Memoir  by  J.  Randolph,  M.  D.  pp.  96-101. 
Philadelphia,  1839. 

Rawle,  William  H.  Oration  on  Unveiling  of  Marshall’s  Statue. 

United  States  Reports,  vol.  cxii,  appendix. 

Senate  Executive  Journal,  1789-1837.  Washington,  1828-87. 

Southern  Literary  Messenger.  Articles  on  Marshall,  vol.  ii,  pp. 

183,  258,  260,  317.  Richmond,  1836. 

State  Department.  Commissions.  1789-1836.  MSS. 

Story,  Joseph.  Article  on  Marshall.  North  American  Review  of 
January,  1828.  Boston,  1828. 

Biography  of  Marshall.  National  Portrait  Gallery 

of  Distinguished  Americans,  vol.  i,  pt.  iii.  Phila- 
delphia, 1833-34.  Story’s  Miscellaneous  Writings; 
Boston,  1835. 

Commentaries  on  the  Constitution  of  the  United 

States.  Boston,  1833. 

Discourse  on  Marshall.  Boston,  1835.  Story’s  Mis- 
cellaneous Writings ; Boston,  1852. 

Life  and  Letters  by  William  W.  Story.  Boston,  1851. 

Taney,  Roger  B.  Life  by  Samuel  Tyler.  Baltimore,  1872. 

Tucker,  St.  George.  Edition  of  Blackstone’s  Commentaries,  vol.  i, 
pt.  i,  appendix,  p.  294.  Philadelphia,  1803. 

Van  Santvoord,  George.  Lives  of  the  Chief  Justices.  (2d  ed. ) 
Albany,  1882. 

Virginia  Bar.  Resolutions  on  Marshall’s  Death.  Brockenbrough’s 
Reports  of  Marshall’s  Decisions  in  Circuit  Court,  vol.  i,  p. 
xvii.  Philadelphia,  1837. 


47 


Virginia  Convention  on  Federal  Constitution,  1788.  Petersburg, 
17S8.  3 Elliot’s  Debates,  (2d  ed. ) Washington,  1836. 

on  State  Constitution,  1829-30.  pp.  616,  619, 

871,  872.  Richmond,  1830. 

Waite,  Morrison  R.  Address  on  Unveiling  of  Marshall’s  Statue. 

United  States  Reports,  vol.  csii,  appendix. 

Washington,  George.  Writings.  (Sparks’s  ed. ) vol.  x;  Boston, 
1836.  (Ford’s  ed.)  vol.  xi;  New  York,  1891. 

Wirt,  William.  Letters  of  a British  Spy.  Richmond,  1803 ; ( 10th 
ed. ) New  York,  1832. 

. Life  by  John  P.  Kennedy.  Philadelphia,  1849. 


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